Citation Nr: 22017165 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 10-45 963 DATE: March 24, 2022 ORDER Entitlement to service connection for multiple sclerosis (MS) is denied. FINDING OF FACT The Veteran's MS was not manifested in service or within 7 years following his discharge from active duty and is not otherwise shown by competent evidence to be etiologically related to his service or any injury, disease, or event therein. CONCLUSION OF LAW The criteria for entitlement to service connection for MS have not been met. 38 U.S.C. §§ 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1978 to April 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO)'s November 2007 rating decision. The claim remaining on appeal was previously before the Board in February 2014 when the petition to reopen the claim was granted, and the claim was remanded to the agency of original jurisdiction (AOJ) for additional development. The case was again before the Board in July 2019, when the issue remaining on appeal was again remanded to the AOJ for additional development (while other issues were resolved and are no longer on appeal). Finally, the case returned to the Board again in December 2020 and was again remanded to the AOJ for further development of the evidentiary record. The prior Board decisions addressing this matter have been issued by Veterans Law Judges (VLJs) other than the undersigned. The case has now been reassigned to the undersigned VLJ for appellate review. 1. Entitlement to service connection for MS is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disability first diagnosed after discharge may be service connected if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases, to include MS, may be presumed to be service-connected if manifested to a compensable degree within a specified period post service (7 years for MS). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). Nexus of a chronic disease listed in § 3.309(a) to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Lay statements describing symptoms and conditions are competent evidence to the extent that one can describe one's own experiences and lay-observable facts. However, these statements must be viewed in conjunction with the medical evidence and the pertinent rating criteria. Lay evidence is not competent evidence concerning complex medical questions requiring specialized training or expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court.). It is the Veteran's contention that he developed multiple sclerosis during service and that his symptoms manifested at least within 7 years of his separation. A review of service treatment records revealed no obvious complaints or diagnosis indicative of a nerve condition or multiple sclerosis. However, the Veteran had multiple complaints of joint pain of the knees between 1985 and 1987 and was diagnosed with "retropatellar pain syndrome" or "patellofemoral syndrome," during his active duty. The Veteran is now service connected for retropatellar pain syndrome of the bilateral knees. Following service, the Veteran's private treatment record dated in December 1999 from Dr. B.W. indicates that the Veteran sought services at his neurology clinic after sustaining injuries to his left arm and leg due to a fall. The Veteran reported that at the end of November, he slipped and fell at work, landing on his left leg and left shoulder. He began developing problems over the next few days after the injury as he started to lose the use of his left arm and leg. He developed a foot drop as well as trouble using his left upper extremity. CT scans were negative, but neck x-rays showed large anterior spurs at C5, C6, and C7 levels. Dr. B.W. issued a clinical assessment of neuropathy with possible overlying traumatic peroneal neuropathy based on the Veteran's EMG and noted that the Veteran may have had an upper extensive injury of his left neck with some destruction of the upper nerve roots. Most of his symptoms were in his hand, identified to be associated with the C6, C7, C8 distribution. However, this was noted to not fit his history. The doctor discussed that the left peroneal nerve injury could have been caused by the fall, but the other nerves that were affected did not well fit the pattern for a traumatic neuropathy. By January 2000, Dr. B.W. suspected that the Veteran may have Guillain-Barre Syndrome. The Veteran was seen by another private neurologist, Dr. W.F., who opined that the Veteran's condition was most likely caused by his November fall, affecting his left leg, resulting in his left peroneal neuropathy and ultimately leading to his foot drop. However, he could not account for the Veteran's left sided weakness, which is also not explained by Guillain-Barre Syndrome. He was ultimately diagnosed with multiple sclerosis with residual left leg weakness in 2001. The Board notes that a general medical VA examination in January 2002 noted a history of a left knee condition since the 1980s, when the Veteran was in Germany. He complained of left knee swelling, especially after running and even received physical therapy. At a March 2003 VA examination, it was noted that the Veteran had symptoms of multiple sclerosis in November 1999 and was later diagnosed in 2002. Despite when the Veteran was accurately diagnosed, the examiner did not find any evidence of multiple sclerosis in service. However, the examiner also noted the Veteran's joint pain of the knee in 1986 after playing sports. He would also experience pain after running up a cable stone in the area. VA obtained a medical opinion in December 2019, which confirmed that the Veteran probably currently has MS (">50% that the Veteran does have MS, albeit an atypical presentation and MRI findings"). The December 2019 VA examiner found that the Veteran did not have multiple sclerosis during service or within 7 years after his separation. The examiner noted that the Veteran first began having neurological problems involving numbness, weakness, and tingling of the left leg. He was given an EMG and nerve conduction test which produced inconclusive results at the time. The Veteran was evaluated over the next three years and was eventually diagnosed with multiple sclerosis in 2001. He began treatment with Avonex injectable and continued it for 11 years. After a physical examination in which the Veteran demonstrated symptoms such as abnormal gait with drop foot and reduced ankle strength, the VA examiner concluded that it is more than likely that the Veteran currently has multiple sclerosis. Based on his medical history, the VA examiner characterized his multiple sclerosis as atypical. The VA examiner noted that the Veteran has not been given any alternative diagnosis besides multiple sclerosis to account for his neurological symptoms (left sided weakness). The VA examiner discussed that the earliest symptoms of multiple sclerosis manifested in 1999, 10 years after his separation from service, and that the Veteran did not receive an actual diagnosis of multiple sclerosis until 2001. In summation, the examiner could not conclude that the Veteran's multiple sclerosis had onset in service or within 7 years after service. Furthermore, the examiner found no rationale to support finding that any of the Veteran's neurological symptoms are related to his military service. Despite the findings of the December 2019 examination, the Veteran argues that it is likely that he had developed multiple sclerosis several years prior to 1999. In a November 2020 memorandum, the Veteran, through his representative, states that multiple sclerosis is a neurological condition with a pathological process that damages nerve cells, nerve fibers, and nerve coverings. This damage to the covering of the nerve cell interferes with nerve signals. Therefore, the argument proceeds, the Board should consider and assume that the December 1999 MRI could not have realistically established the date of onset; rather, it is more likely that the date of onset is several years earlier, evidenced by his severe joint pain of the left knee during active duty, since his multiple sclerosis symptoms are associated with the left side. In its December 2020 remand, the Board explained that the December 2019 VA examiner did not sufficiently consider and address the Veteran's multiple complaints of joint pain in service, which may be evidence of the onset of his multiple sclerosis. While the examiner stated the earliest symptoms of the Veteran's multiple sclerosis did not manifest until 1999, the examiner did not address the Veteran's in-service complaints of joint pain, specifically in the knees. The Board remanded the case to obtain a supplemental medical opinion to adequately address whether the Veteran's joint pain in service was, in fact, a manifestation of his current multiple sclerosis. The resulting new January 2021 VA medical opinion presents a medical doctor's opinion, informed by review of the claims file and the Veteran's VA medical records, addressing this matter. The doctor finds: "Veteran's symptoms of joint pain of the knees noted in STR between 1986-1987 was less likely than not a symptoms of his currently diagnosed MS." The doctor explains: "Veteran's symptoms of MS diagnosed in approximately 2001 included left sided weakness and numbness. Localized joint pain to knees is not consistent with symptoms that he was noted to have more than 13-15 years later when the diagnosis of MS was made in 2001." Additionally, the doctor cites the fact that the "Veteran's joint pain of the knees is also already accounted for in his service connected right and left knee conditions." Again, the doctor concludes: "Due to this information, Veteran's symptoms of joint pain of the knees was less likely than not a symptom of his currently diagnosed MS." In a February 2022 brief, the Veteran's representative argues that the January 2021 VA medical opinion "did not provide dispositive evidence and focused only on the date of formal diagnosis and a possible explanation of earlier idiopathic symptoms." The representative expressed concern based upon the impression that the opinion providing VA doctor "dismiss[ed] the Board's request to review the specific records of in-service knee pain and other orthopedic problems...." The Board finds that the January 2021 VA medical opinion cites review of the pertinent contents in the claims-file and furthermore addresses the pertinent history of "joint pain of the knees" as requested by the Board's remand directives. The Board finds that the opinion reflects that the authoring doctor was adequately informed by review of the facts in evidence, and the competent medical opinion presented by the doctor was accompanied by a persuasive explanation of analytical rationale; the medical opinion explains that consideration of the Veteran's documented history of localized joint pain to the knees as compared to the MS symptom manifestations associated with the diagnosis yields, from a medical perspective, a conclusion that the joint pain was not consistent with the Veteran's MS pathology. The fact that the opinion-providing doctor further noted that the in-service knee pain was consistent with a documented service-connected disability distinct from MS only tends to add persuasive value to the doctor's explanation of the analysis. The Board does not agree with the Veteran's representative that the January 2021 VA medical opinion is deficient or inadequate. The Board finds that the January 2021 VA medical opinion is probative evidence in this case, prepared by a competent medical expert informed by review of the evidence and including a persuasive explanation of the pertinent medical analysis. The probative January 2021V VA medical opinion indicates that the Veteran's history of joint pain of the knees is not medically indicative of in-service onset of his MS in this case. To the extent that the Veteran's representative has suggested a contrary medical analysis of the facts in this case, the Board finds that the conclusions drawn in the representative's analysis are not competent evidence in this case. The interpretation and application of medical principles regarding the pathogenesis of MS features complex medical analysis requiring specialized training or expertise; the Veteran and his representative are not shown to have the specialized training or expertise to competently establish such medical analysis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). While the February 2022 written brief argues that "detailed accepted medical aspects o[f] the pathogenesis of relapsing and remitting MS" could support the Veteran's theory of entitlement, and that "the problem in diagnosing MS is complicated by the fact that this disease often goes into remission," the competent medical evidence in this case probatively indicates that the Veteran's case of MS is not shown to have had onset during his military service or within the seven-year period thereafter. The Board acknowledges the representative's concern that the January 2021 VA medical opinion "focused only on the date of formal diagnosis and a possible explanation of earlier idiopathic symptoms," but the Board is unable to agree with the representative's characterization of the VA medical opinion. The Board finds that the January 2021 VA medical opinion persuasively indicates that consideration of the Veteran's medical history and history of symptomatology does not support a finding that the Veteran's case of MS manifested in his in-service joint pain featuring the knees. The competent probative evidence indicates that MS was not manifested in service, nor is MS shown by competent evidence to have been manifested within 7 years following discharge from service. Accordingly, service connection for MS on the basis that it became manifest in service and persisted, or on a chronic disease presumptive basis under 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a), is not warranted. Postservice evaluation/treatment records do not support or suggest that the Veteran's MS was or may be related to his service. Regarding the dispositive factor of a nexus between a claimed disability and service, the Board finds the VA examination reports and medical opinions (cumulatively) merit substantial probative weight. They reflect review of the Veteran's claims file, familiarity with his medical history, and consideration of lay accounts, and include rationale that cites to historically accurate supporting factual data and medical principles. The Board notes that the January 2021 VA examiner did provide explanation of rationale in support of the opinion offered: that the manifestations of MS associated with his diagnosis are not consistent with the cited in-service symptoms of knee joint pain (which have also been attributed to a distinct pathology). The Board finds the January 2021 VA medical opinion to be probative evidence in the matter, and persuasive evidence weighing against the claim. As there is no competent evidence that the Veteran's MS is etiologically related to his service, the Board concludes that the evidence is persuasively against this claim. Accordingly, the appeal in the matter must be denied. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Barone, Alexander 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.