Citation Nr: 21028465 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 17-60 778 DATE: May 11, 2021 ORDER New and material evidence has been received to reopen a service connection claim for multiple sclerosis. Service connection for multiple sclerosis is granted. FINDINGS OF FACT 1. In an unappealed August 2009 rating decision, the RO last denied service connection for multiple sclerosis. 2. The evidence received since the last final August 2009 rating decision is new and material and relates to an unestablished fact necessary to substantiate the claim of service connection for multiple sclerosis. 3. Resolving reasonable doubt in the Veteran's favor, symptoms of the currently diagnosed multipole sclerosis onset within seven years of the Veteran's separation from service. CONCLUSIONS OF LAW 1. The August 2009 rating decision that last denied service connection for multiple sclerosis is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2020). 2. New and material evidence has been received sufficient to reopen the claim of service connection for multiple sclerosis. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 3. The criteria for service connection for multiple sclerosis have been met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from November 1981 to March 1982 and from July 1983 to October 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of a Department of Veterans' Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified during a virtual Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. New and Material Evidence Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a Notice of Disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.302. Generally, a final rating decision or Board decision may not be reopened and allowed, and a claim based on the same factual analysis may not be considered. 38 U.S.C. §§ 7104, 7105. Under 38 U.S.C. § 5108, however, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." "The Board does not have jurisdiction to consider [the previously adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board is neither required nor permitted to analyze the merits of a previously-disallowed claim if new and material evidence is not presented or secured. Butler v. Brown, 9 Vet. App. 167, 171 (1996). When determining whether a claim should be reopened, the credibility of the newly-received evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). "New" evidence is defined as existing evidence not previously submitted to agency decision-makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In a July 2006 rating decision, the RO denied the Veteran's original claim for service connection for multiple sclerosis. See Rating Decision dated July 6, 2006. The RO concluded that the Veteran's multiple sclerosis was not related to service as there was no evidence in the Veteran's service treatment records or post-service VA treatment records indicating that the disorder occurred in or was caused by service. The Veteran did not timely submit a Notice of Disagreement, nor was new and material evidence received within a year of issuance of the July 2006 notification letter; the rating decision therefore became final. 38 C.F.R. § 20.1103. In February 2008, the Veteran sought to reopen her service connection claim for multiple sclerosis. In a May 2008 rating decision, the RO declined to reopen the claim, concluding that while the Veteran had submitted new evidence, it was not material to the issue of a nexus between her multiple sclerosis and service or to show that the disease was diagnosed within seven years of her discharge from service. See Rating Decision dated May 14, 2008. The Veteran did not appeal the May 2008 rating decision, nor was new and material evidence received within a year of issuance of the May 2008 notification letter; the rating decision therefore became final. 38 C.F.R. § 20.1103. In June 2009, the Veteran again sought to reopen her service connection claim for multiple sclerosis. In an August 2009 rating decision, the RO declined to reopen the claim, concluding that while the Veteran had submitted new evidence, it was not material to the issue of a nexus between her multiple sclerosis and service or to show that the disease was diagnosed within seven years of her discharge from service. See Rating Decision dated August 31, 2009. The Veteran did not appeal the August 2009 rating decision, nor was new and material evidence received within a year of issuance of the September 2009 notification letter; the rating decision therefore became final. 38 C.F.R. § 20.1103. In June 2011, the Veteran again sought to reopen her service connection claim for multiple sclerosis. In a November 2012 rating decision, the RO declined to reopen the claim, concluding that while the Veteran had submitted new evidence, it was not material to the issue of a nexus between her multiple sclerosis and service or to show that the disease was diagnosed within seven years of her discharge from service. See Rating Decision November 9, 2012. The Veteran did not appeal the November 2012 rating decision. However, in September 2013, the Veteran submitted a petition to reopen her claim, including a September 2013 medical opinion of a VA physician and a statement from her sister E.J. See Correspondence from E.K., M.D. dated September 10, 2013; Statement from E.J. received September 30, 2013. In an April 2014 rating decision, the RO denied the Veteran's claim on the merits. See Rating Decision dated April 12, 2014. Although the April 2014 rating decision does not identify new and material evidence, it discusses the September 2013 medical opinion from the VA physician and a September 2013 statement from E.J. regarding the Veteran's symptoms. The RO concluded that the medical opinion is not probative because the symptoms the Veteran described to the VA physician. are not supported by medical evidence; the rating decision does not discuss the statement from E.J. The Veteran submitted a timely Notice of Disagreement and timely perfected an appeal to the Board, and the instant appeal ensued. The Board finds that the September 2013 medical opinion from the September 2013 VA physician and the September 2013 statement from the Veteran's sister E.J. are new and material. Since new and material evidence was received within one year of the November 2012 rating decision, the November 2012 decision did not become final. Based on the procedural history of the case, the last final decision pertinent to the Veteran's claims of service connection for multiple sclerosis is the August 2009 rating decision. The evidence of record at the time of the August 2009 rating decision consisted of the Veteran's service treatment records, VA treatment records, and statements in support of her claim. Subsequent to the August 2009 rating decision, evidence added to the claims file includes additional VA treatment records, statements in support of her claim, the September 2013 medical opinion from the VA physician, the September 2013 statement from the Veteran's sister E.J., VA examination reports dated November 2015 and June 2016 and an associated VA medical opinion, and a September 2017 medical opinion by a non-VA physician A.G., M.D. The additional evidence received since the August 2009 prior final denial, specifically the VA and non-VA medical opinions and the statement from E.J., speaks to the question of a nexus and is therefore new and material. Accordingly, new and material evidence has been received, and to this extent only, the claim of service connection for multiple sclerosis is reopened. Lastly, the Board notes that subsequent to the last final denial of the claim, in the October 2017 Statement of the Case on appeal, the RO reopened the claim and denied it on the merits. There is therefore no prejudice to the Veteran in the Board also considering the claim on the merits. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Service Connection Applicable Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of 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 of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Multiple sclerosis diagnosed within seven years of separation from service may be presumptively service connected as a chronic disability. 38 C.F.R. § 3.307(a)(3). A diagnosis of multiple sclerosis after the seven-year presumptive period may warrant service connection where there was evidence of symptoms within seven years after service and a subsequent medical opinion attributes these symptoms to multiple sclerosis. Traut v. Brown, 6 Vet. App. 495, 500 (1994); see also 38 C.F.R. § 3.307(c). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Board must determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). Analysis The Board recognizes that the Veteran is currently diagnosed with multiple sclerosis. See VA neurology outpatient note dated April 8, 2016; VA multiple sclerosis examination dated June 24, 2016; see also Correspondence from E.K., M.D. dated September 10, 2013. The Veteran asserts that her multiple sclerosis onset during, or is related to, her active duty service. See, e.g., Statement in Support of Claim received February 25, 2008; Notice of Disagreement received August 13, 2014; Board hearing transcript dated September 21, 2020. The Veteran's service treatment records do not reflect a clinical diagnosis of multiple sclerosis. Of note however, from December 1983 to February 1984, the Veteran reported leg pain that affected her walking, noting that her left hip "locks up," which was initially noted as a probable groin pull. See, e.g., Chronological Record of Medical Care entries dated December 16, 1983 and February 2, 1984; Consultation Sheet dated January 3, 1984. Notably, the aforementioned service treatment records do not note a particular etiology for the Veteran's in-service leg pain and mobility impairment, and in February 1984, an Army physician indicated uncertainty regarding how to best treat the Veteran's symptoms. Id. The service treatment records also reflect urinary tract infections (UTIs) and the birth of the Veteran's child in January 1986. See Inpatient Treatment Record dated January 18, 1986. Post-service treatment records reflect that the Veteran was diagnosed with multiple sclerosis in 2005, with a history of optic neuritis in 1987. See, e.g., VA treatment records dated November 10, 2005 and June 2, 2006. During a VA neurology appointment in March 2006, the Veteran said she believed her first multiple sclerosis symptoms, including vision problems and eye pain, started sometime after June 1987. See VA neurology note dated March 31, 2006. The Veteran is competent to describe observable symptoms such as leg pain, weakness, and vision impairment because this requires only personal knowledge as it comes to her through her senses. Layno, 6 Vet. App. at 470. In a September 2013 medical opinion, the Veteran's treating physician, a neurologist at a VA medical center, opined: "It is evident that her symptom onset predated her diagnosis of MS when she developed a painful bilateral vision loss for 1-2 weeks in 1986." See Correspondence from the physician dated September 10, 2013. The physician explained that the Veteran was diagnosed with multiple sclerosis in 2005, that he had treated the Veteran for more than five years, and he was familiar with her medical condition and medical history. Id. In February 2016, the Veteran's representative noted that in reaching his opinion, the Veteran's physician had reviewed the Veteran's treatment records. In a November 2015 VA opinion, the examiner noted that various medical issues reflected in the service treatment records, including incontinence, urinary retention, and eye symptoms were less likely than not related to the Veteran's multiple sclerosis, and that the in-service left leg pain was a probable groin pull. However, the examiner said he was unable to render an etiology opinion without resorting to mere speculation and recommended that an opinion be obtained from a VA neurologist, "who would have more expertise with MS than this examiner." As such, the Board assigns the November 2015 VA examiner's remarks low probative weight. See Nieves-Rodriguez, supra. The Veteran underwent a VA examination by a neurologist in June 2016, at which time she said she believed her multiple sclerosis onset about a week after giving birth in June 1987 with impaired vision and blindness that lasted about a week. The VA examiner opined, in part, that the Veteran's multiple sclerosis is less likely than not related to service, explaining that while optic neuritis is a common initial event in the onset of multiple sclerosis, it is also common after pregnancy. The examiner acknowledged the opinion of the Veteran's VA neurologist that the in-service symptoms could have been unrecognized multiple sclerosis symptoms; however, the examiner concluded that the in-service leg pain was most consistent with a musculoskeletal cause, and that the in-service symptom of her leg locking up was not likely caused by spasticity related to multiple sclerosis since there is no indication she had lateralizing weakness at that time, which is also a symptom of multiple sclerosis. The VA examiner also opined that it is unlikely that urinary tract infections noted in the service records represented multiple sclerosis symptoms since those records do not note symptoms of a neurogenic bladder, typically associated with UTIs related to multiple sclerosis. Notably, the June 2016 VA examiner concluded that it is more likely than not that the Veteran "did not develop symptomatology of multiple sclerosis prior to 1987 when she had an episode of likely optic neuritis." See VA examination dated June 24, 2016. In September 2017, a private physician identified as A.G., M.D. opined that it is at least as likely as not that the Veteran's initial presentation of symptoms that occurred within the first year of discharge from service was an early indicator of her current condition of multiple sclerosis, explaining that the Veteran "stated that symptoms of multiple sclerosis commenced while in service and shortly thereafter. A.G. noted issues with locomotion, weakness, back pain, and urinary issues while in service, emphasizing that the symptoms were never fully investigated. She also indicated that while giving birth in 1987, the Veteran experienced brief blindness due to optic neuritis." See Correspondence from A.G., M.D. received September 13, 2017. A.G. added, "MS presents with a variety of symptoms, including changes in sensation, muscle weakness, abnormal muscle spasm, difficulty moving, difficulties with coordination and balance, problems in speech, visual problems, fatigue, acute or chronic pain syndromes, bladder and bowel difficulties." Lastly, A.G. concurred with the September 2013 opinion of Doctor E.K., finding that the Veteran's multiple sclerosis symptoms onset "predated her diagnosis of MS when she developed a painful bilateral vision loss for one or two weeks in 1986. Id. Therefore, A.G. concluded that it is at least as likely as not that the Veteran's initial presentation of symptoms that occurred within the first year of discharge from service was an early indicator of her current condition of multiple sclerosis." See Correspondence from A.G., M.D. received September 13, 2017. (Continued on the next page) The 2013, 2016, and 2017 medical opinions are competent, credible and probative: Each opinion was authored by a licensed physician who reviewed the Veteran's claims file and was therefore familiar with the Veteran's symptoms, diagnoses, and treatment of her multiple sclerosis; the opinions are based on examination and interview of the Veteran and review of the evidence of record as well as the Veteran's lay statements. Moreover, each opinion contains clear conclusions noting medical evidence of record connected by reasoned medical explanations. See Nieves-Rodriguez, supra. Although the 2013, 2016, and 2017 medical opinions differ as to whether the Veteran's symptoms in 1986 and 1987 were due to multiple sclerosis, musculoskeletal problems, or pregnancy, the opinions are generally in agreement that symptoms of the currently diagnosed multiple sclerosis onset no later than 1987. At the very least, the evidence of record is in equipoise as to whether symptoms of the Veteran's multiple sclerosis onset within seven years of her separation from service in 1986. Based on the foregoing, and resolving all reasonable doubt in the Veteran's favor, the Board finds that presumptive service connection for multiple sclerosis is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.307(a)(3), (c); Traut, supra. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.