Citation Nr: 22014772 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 19-18 997 DATE: March 15, 2022 ORDER Service connection for multiple sclerosis (MS) is granted. FINDING OF FACT The evidence is at least in relative equipoise as to whether the Veteran's MS is related to her active service. CONCLUSION OF LAW The criteria for service connection for MS are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1998 to February 2007 in the U.S. Marine Corps. Her awards include the Iraq Campaign Medal, Sea Service Deployment Ribbon with two stars, Global War on Terrorism Service Medal, Korean Defense Service Medal, and Global War on Terrorism Expeditionary Medal (Iraq). This matter comes before the Board of Veterans' Appeals (Board) from an August 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board denied the Veteran's claim for service connection for MS in October 2020. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In an October 2021 Joint Motion for Remand (JMR), the Court vacated and remanded the issue on appeal finding that the Board failed to provide an adequate statement of reasons or bases as to whether the Veteran can establish entitlement to service connection for her signs and symptoms of an undiagnosed illness and medically unexplained chronic multisymptom illness pursuant to 38 C.F.R. § 3.317 and relied on an inadequate December 2019 VA medical nexus opinion. The Veteran contends that symptoms of her diagnosed MS began during active service and continued after separation from service. Alternatively, she contends that her MS is related to exposure to burn pits during her service in Iraq. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Certain chronic diseases, including MS, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. For MS that presumptive period is seven years following separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Veteran's service treatment records (STRs) show treatment for symptoms that may be related to MS, including lower back pain, numbness and tingling in the lower extremities, depression, anxiety, decreased sleep, low energy, weakness, headaches, painful joints, muscle aches, dizziness, fainting, diarrhea, and vomiting. The Veteran's VA treatment records and private treatment records also show complaints and treatment for symptoms that began during active service and continued after separation, including migraine headaches with blurred vision, dizziness, back pain, and numbness. In July 2019, the Veteran submitted several medical articles noting that back pain is one of many symptoms associated with MS and that in the early stages of MS, symptoms may be similar or confused with a migraine attack. In December 2019, a VA physician opined that the Veteran's MS was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The physician also opined that the Veteran's MS did not begin during active service, did not manifest within seven years after separation from service, and was not noted in service with continuity of the same symptomatology. Regarding the documented symptoms during service, the physician stated that while the symptomatology can be part of MS, the symptoms can be part of many other neurological and non-neurological conditions as well. The physician further stated that none of the symptoms are pathognomonic for MS and were not part of the Veteran's signs and symptoms of MS. Additionally, the physician stated there are situations where the symptoms exist in the context of a patient with MS and there are situations where the symptoms are not present at all. The physician also stated that the symptoms are not specific to the condition of MS. The physician stated that the Veteran's signs and symptoms, including headaches, joint pain, back pain, muscle aches, fainting, dizziness, diarrhea, vomiting, and feeling tired even after sleep are not in such a clinical presentation or constellation as to be precursor to the Veteran's condition because her MS began in 2017 with a diagnosis thereafter. Finally, regarding the medical articles submitted by the Veteran, the physician again stated that while back pain and other symptoms can be related to MS, there are a number of symptoms that can be associated with MS and other conditions as well and in the Veteran's case, her symptoms that can be seen in MS were not related to MS or early signs of MS during service or years to follow. The Board affords the December 2019 VA opinion little probative weight because the physician did not explain why the Veteran's in-service symptoms were not related to MS or otherwise provide an etiology for the Veteran's in-service symptoms. Moreover, the physician did not address whether the Veteran's MS is directly related to active service. The Veteran submitted a February 2019 medical opinion from her treating physician. Her physician opined that based on review of records, past medical history, and 10 years of service with deployment, the Veteran's MS could be related to exposure to chemical toxins in the military. However, the physician did not provide a rationale. The Veteran submitted another private opinion from her treating physician in December 2021. Her physician opined that it is extremely plausible that the Veteran had MS while serving in the U.S. Marine Corps. The physician stated that after the Veteran's deployment in June 2004, she had a lot of fatigue, unexplained pain, dizziness, increasing migraines, numbness in her feet, legs, and arms, weakness in her right lower extremity and numbness going down to her right foot. The physician explained that her symptoms were unexplained, and the Veteran is now being treated for MS. The physician also stated that many patients have MS up to 10 years prior to an official diagnosis. The Veteran stated that she has experienced symptoms of MS since service. See August 2020 Correspondence. The Board finds this statement competent and credible as the Veteran's private treatment records note that her MS baseline symptoms include severe fatigue, burning pain in her right foot, neuropathic pain in her arms, electrical like sensations, intermittent itching sensation of the hands, back, and face, anxiety, and history of posttraumatic stress disorder. See August 2018 Medical Treatment Record. Moreover, the Veteran's statement is consistent with her VA treatment records and private treatment records. After affording the Veteran the benefit of the doubt, the Board finds that the evidence is at least in relative equipoise as to whether her symptoms of MS had their onset during active service with continuity of symptomatology since. Therefore, service connection is warranted on a presumptive basis. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The grant of service connection on a presumptive basis renders moot other theories of service connection. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Kernen, 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.