Citation Nr: 22016273 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 17-48 293A DATE: March 21, 2022 ORDER Entitlement to service connection for multiple sclerosis is denied. FINDINGS OF FACT 1. Multiple sclerosis was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The Veteran is competent to report lay observable symptoms of instability of gait, muscle weakness, dizziness, fatigue, neurological and mood-related symptoms however, he is not competent to report that these symptoms were related to his multiple sclerosis. CONCLUSION OF LAW The criteria for entitlement to service connection for multiple sclerosis are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from September 2004 to September 2008. This matter comes to the Board of Veterans' Appeals (Board) from an April 2016 rating decision of the Department of Veterans Affairs (VA) Veterans Benefits Administration (VBA). The Board remanded this issue to VBA for additional development in September 2021. The Board finds VBA substantially complied with remand directives, and the issue is ready for adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to service connection for multiple sclerosis. The Veteran contends his multiple sclerosis is a result of being injured during service by an improvised explosive device (IED). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service if they were shown as chronic 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, (or within an applicable presumptive period - seven years for multiple sclerosis) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). In adjudicating this claim, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board must also assess the credibility, and therefore the probative value, of the evidence of record in its entirety. Owens v. Brown, 7 Vet. App. 429 (1995). In determining whether documents submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran has a current diagnosis of multiple sclerosis as evidenced by a November 2021 VA examination report. Multiple sclerosis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. Service treatment records show the Veteran complained of losing consciousness, swollen and painful joints, headaches, muscle aches, dizziness, and feeling tired after being injured after an IED exploded in August 2006. Post-service, VA and private treatment records show that he continued to complain of the same symptoms. Private treatment records note the Veteran was diagnosed with multiple sclerosis in January 2016. At the time, private examiners noted the Veteran's history of suffering due to the 2006 IED explosion and noted that the Veteran reported suffering from the same symptoms since 2006. However, no examiner has indicated that the Veteran's symptoms suffered during service were directly related to his diagnosis of multiple sclerosis. The Veteran's symptoms were, however, attributable to other service-connected disabilities to include, traumatic brain injury, posttraumatic stress disorder, cluster headaches, left lower leg fracture, and vertigo. An October 2021 VA medical opinion notes the Veteran's multiple sclerosis was less likely than not related to the Veteran's in-service injuries due to an IED. The examiner reasoned that the Veteran's in-service symptoms were acute with no sign of continuation of symptoms during or immediately following service. The examiner further noted there were no signs of chronic, progressive complaints of swollen and painful joints, knee trouble, impaired use of the arms, legs, hands, or feet or any other neurological or mood-related symptoms during or after service. As such, the Veteran's current diagnosed multiple sclerosis was less likely than not incurred in or related to service. Based on the foregoing, the Board gives more probative weight to the October 2021 VA medical opinion as the examiner carefully reviewed the evidence, examined the Veteran, and based the opinion on sound medical principles. As such, the Board finds the Veteran's claim fails on a direct basis as the evidence persuasively weighs against the finding that the Veteran's multiple sclerosis was caused or aggravated by the injuries sustained after being hit by an IED during service. Additionally, the Board finds the Veteran's claim fails on a presumptive basis. Multiple sclerosis is an enumerated condition under 38 C.F.R. § 3.309 (a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within the presumptive period, and was not noted in service with attributable continuity of symptomatology. The Veteran's multiple sclerosis was not diagnosed until January 2016 which is well after the presumptive period of seven years post service. Moreover, as the Veteran is competent to report his lay observable symptoms of weakness in his lower limbs, fatigue, dizziness, instability of gait, neurological and mood-related symptoms and his statements are credible and entitled to probative weight, however, he is not competent to assert that these symptoms are evidence of a diagnosis of multiple sclerosis during or following service as the issue is medically complex and is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board notes that a claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2022). If "the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise) the claimant receives the benefit of the doubt." Id. As the only probative evidence of record weighs against a finding that the Veteran's multiple sclerosis is related to service on a direct and presumptive basis, the Board finds the evidence is not in approximate balance, and the benefit of the doubt doctrine is not applicable. The claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McDuffie, 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.