Citation Nr: 22044575 Decision Date: 08/05/22 Archive Date: 08/05/22 DOCKET NO. 19-06 433 DATE: August 5, 2022 ORDER New and material evidence having been received, the appeal to reopen the previously denied matter of service connection for multiple sclerosis is granted, to this limited extent only. REMANDED Entitlement to service connection for multiple sclerosis is remanded. FINDING OF FACT Evidence associated with the record after the March 2012 rating decision became final raises a reasonable possibility of substantiating the claim of service connection for multiple sclerosis. CONCLUSION OF LAW The criteria to reopen the Veteran's claim of entitlement to service connection for multiple sclerosis based on the receipt of new and material evidence have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served from December 1974 to February 1975. This matter comes before the Board of Veteran's Appeals (Board) from a September 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2021, the Veteran testified via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. As the Veteran specifically limited the issue on appeal in her VA Form-9 to the matter of service connection for multiple sclerosis, the matter of service connection for a separate condition affecting her vision, to include myopia/myopic degeneration, is not currently before the Board for appellate review. This conclusion should not be read to imply any finding as to the scope of the claim of service connection for multiple sclerosis and any associated symptomatology. As a threshold matter, the Board observes "veteran status" for VA compensation purposes, as the term is defined by pertinent law and regulations, has not yet been established. See 38 U.S.C. §§ 101(2) and (24); 38 C.F.R. §§ 3.1(d), 3.6(a); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Reference to the appellant herein as "Veteran" should not be construed to imply that "veteran status" for VA compensation purposes has been conceded. New and material evidence to reopen the previously denied claim of service connection for multiple sclerosis The Veteran seeks service connection for multiple sclerosis. As the matter of entitlement to service connection for multiple sclerosis has been subject of a prior final rating decision, the Board must determine in the first instance whether new and material evidence has been received to reopen the matter. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) Applicable Law Generally, if a claim of entitlement to service connection has been previously denied, that decision is final, unless the Veteran appealed in a timely manner. 38 U.S.C. § 7104, 7105; 38 C.F.R. § 3.104, 20.1100, 20.1103. However, a previously denied service connection claim can be reopened if the Veteran files a new claim and submits new and material evidence. 38 U.S.C. § 5108. VA is required to review all of the evidence submitted by a Veteran since the last final denial of the claim in order to determine whether a claim must be reopened and readjudicated on the merits. Glynn v. Brown, 6 Vet. App. 523 (1994). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Relevant procedural history The claims file before the Board reveals the matter of entitlement to service connection for multiple sclerosis was denied in a March 1994 rating decision. No new evidence, nor notice of disagreement (NOD) as to that decision, was associated with the record within the year following notification of the rating decision. In August 2006, the Veteran requested reopening of the matter. See VA Form 21-4138 of August 2006. A November 2006 rating decision denied reopening the matter of service connection for multiple sclerosis, finding no new and material evidence had been received. No new evidence nor NOD as to that decision, was associated with the record within the year following notification of the rating decision. In January 2012, the Veteran requested her claim of service connection for multiple sclerosis be reopened. She also submitted medical records in support of her claim. A March 2012 rating decision acknowledged the receipt of additional medical records but continued to deny the claim of service connection. No new evidence nor NOD as to that decision, was associated with the record within the year following notification of the rating decision. In July 2016, the Veteran presented a completed VA Form 21-526EZ, requesting service connection for multiple sclerosis. A September 2016 rating decision denied reopening the matter finding no new and material evidence had been received. The Veteran presented a NOD as to that decision in May 2017, a Statement of the Case (SOC) was issued in December 2018 and a VA Form 9 perfecting the appeal to the Board was received in January 2019. In December 2021, the Veteran presented testimony before the undersigned in favor of her claim of service connection for multiple sclerosis. In pertinent part, the Veteran provided testimony as to symptomatology she experienced during service. Additionally, the Veteran's representative has presented an argument as to the possibility that the Veteran's military personnel records are incomplete or have not been obtained. See hearing transcript. Analysis Following review of the available documents in the claims file at this time, the Board finds the rating decisions of March 1994, November 2006 and March 2012 became final, as the Veteran does not contend, and the record does not show that an NOD or new evidence was received within the year following the notification of each rating decision. Since the most recent final decision on the matter, issued in March 2012, new and material evidence sufficient to reopen the matter has been received. Importantly, the Veteran's testimony at the hearing raises a theory of entitlement that has not been previously addressed, that of an in-service onset. Moreover, the representative's arguments suggest there may be outstanding military personnel records. These statements are found to be new as they were not previously of record at the time of the previous decisions. Further, they are found to be material as to the matter of service connection for multiple sclerosis because they raise a reasonable possibility of substantiating the claim of service connection in view of the available evidence of record. Accordingly, new and material evidence having been received, reopening of the claim of service connection for multiple sclerosis is warranted. The above analysis and conclusions, to include the finality of previous decisions, are based on the available evidence in the claims file currently before the Board. The foregoing should not be construed to include any explicit or implicit finding as to the allegation by the Veteran's representative pertaining to the possible existence of outstanding military personnel records and/or their relevancy, to include any potential legal arguments that could be made pursuant to applicable regulations, to include 38 C.F.R. § 3.156 (c), should the Veteran prevail in the present appeal in a future date. REASONS FOR REMAND Entitlement to service connection for multiple sclerosis is remanded. The Veteran seeks service connection for multiple sclerosis. In favor of the claim, the Veteran sustains she was formally diagnosed with multiple sclerosis in 1982. She has also provided testimony regarding symptomatology she experienced in service and thereafter. Further, her representative has asserted that multiple sclerosis can present with symptomatology similar to what the Veteran experienced in service. See hearing transcript. Unfortunately, while the claim has been reopened, the evidence of record is insufficient to adjudicate the matter. Thus, the claim must be remanded for development, prior to adjudication. Importantly, the Veteran's representative has argued that there may be outstanding medical records and military personnel records from the claims file. In support of that argument the Veteran reported treatment at Moncrief Army Hospital during service, and her representative noted that personnel records pertaining to the circumstances of the Veteran's discharge appeared to be incomplete or not of record. See hearing transcript. It is observed the available STRs of record include some stamps from Moncrief Army Hospital, suggesting treatment there, but it is unclear whether additional records from the hospital remain outstanding. Further, while there are some documents of record pertaining to a referral to the mental hygiene consultation division, it is unclear whether additional personnel records pertaining to the Veteran's service, to include those pertinent to her discharge or a formal medical board determination remain outstanding. See STRs. As such, upon remand the agency of original jurisdiction must obtain the Veteran's complete military service treatment records, as well as her complete military personnel files, or otherwise certify that all existing records have been associated with the claims file. Particularly, records from Moncrief Army Hospital pertaining to the Veteran's treatment during her period of service, and/or any outstanding military personnel record pertaining to the circumstances of her discharge should be obtained. If any of these records cannot be located, the RO should make a formal finding in the file of the unavailability of those records and notify the Veteran. In addition to the above, the Board observes the arguments raised at the hearing suggest the Veteran's multiple sclerosis symptomatology may have begun in service, eventually resulting in her formal diagnosis in 1982. See hearing transcript. The Veteran's service treatment records (STRs) show her enlistment examination notes no disqualifying defects or diseases, nor any other abnormality patently associated with the claimed disability or symptoms. During her service, the Veteran began to report episodes of passing out, to include at least one report of a head injury during one episode. She also complained of headaches, dizziness, weakness, black out spells, and shortness of breath, at various times. Further, the STRs note she also reported chest pain, back pain, tingling in hands and face, foot pain, abdominal symptoms, and eye issues. See STRs for January 1975. It seems her physicians provided various provisional diagnoses to explain her symptoms and ruled out mononucleosis as a possible etiology. See STRs, to include laboratory findings. The available post-service medical records suggest the Veteran sought medical care for weakness and dizziness, following her separation from service. See for example medical records for 1976 and 1977. The available records also show that in July 1982, she was diagnosed with multiple sclerosis. Records contemporary to this diagnosis note she was admitted for medical care due to complaints of dizziness present for 3 to 4 weeks prior to admittance and that she also reported double vision just prior to admission. The day of admission, the Veteran had an episode of loss of consciousness for approximately 1 minute. At the time, the Veteran reported as previous medical history occasional headaches, as well as occasional queasy feelings, previous episodes of loss of consciousness, and having been told that she was hyperventilating. As a result, the Veteran was subject to a battery of tests, which revealed, among other things, decreased sensory ability in certain parts of her body, an ataxic gait, and loss of balance. She was also administered a CT scan which revealed minimal cerebellar atrophy and laboratory tests revealed certain atypical findings. Based on the physical and the laboratory findings, the Veteran was diagnosed by a neurologist with multiple sclerosis and started on medication. See medical records dated July 1982, associated with the claims file in February 1994. The available medical records, as well as the Veteran's testimony at the hearing show she has continued to experience multiple sclerosis symptomatology throughout the years following her diagnosis. See hearing transcript. In view of the above, the Board finds a medical opinion must be obtained, to determine whether it is at least as likely as not that the Veteran's multiple sclerosis condition had its onset in service. Notably, the record contains competent evidence of a current disability, and while the available STRs do not show an in-service diagnosis of multiple sclerosis, they do note various complaints of certain symptomatology during service. Further, the lay statements of record, to include those provided at the hearing, in addition to medical evidence contemporaneous to her diagnosis, suggest some similarity between the symptomatology the Veteran experienced in service and the symptomatology associated with her current disability. Unfortunately, the available evidence of record is insufficient to adjudicate the matter, as no competent evidence of record addresses whether the Veteran's in-service symptomatology can be attributed to her multiple sclerosis; which is a medical question requiring medical expertise. The Board observes that there is no requirement that a condition be diagnosed in service before service connection can be granted. In other words, the determining factor is not a specific diagnosis rendered in service but rather whether all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Thus, considering the totality of these circumstances, the Board finds the low threshold established in McLendon to trigger VA's duty to assist in providing a medical opinion has been met. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Further, VA's duty to assist applies to all elements of service connection, including those that pertain to establishing "veteran status." See generally Gardner v. Shinseki, 22 Vet. App. 415, 421-22 (2009); see also Canlas v. Nicholson, 21 Vet. App. 312, 316 (2007) (VA's duty to assist applies to all five elements of claim, including verifying veteran status). As such, the Board must remand this matter for a medical opinion that addresses whether it is at least as likely as not that the Veteran's condition had its onset, or is otherwise related to, service. Upon remand, the Veteran is free to submit additional evidence in support of her claim and arguments, to include additional medical records and/or medical opinions addressing the Veteran's in-service symptoms, the claimed condition, its onset, and/or its likely etiology. See Kutscherousky v. West, 12 Vet. App. 369, 372-73 (1999) (per curiam order); see also Kay v. Principi, 16 Vet. App. 529, 534 (2002). The matter is REMANDED for the following actions: 1. Obtain the Veteran's complete service personnel records and service treatment records, including any formal recommendation for discharge and any outstanding medical record from Moncrief Army Hospital. All attempts to obtain the records should be fully documented, and a negative response should be requested if no records are available. If it is determined any of these records cannot be located, the RO should make a formal finding in the file of the unavailability of those records, with notification to the Veteran and her representative. 2. Invite the Veteran to identify and/or submit any outstanding medical records and to submit any necessary releases or authorizations for VA to obtain any sufficiently identified private medical record on her behalf. 3. Schedule the Veteran for a VA examination pertaining to her multiple sclerosis. The clinician is requested to obtain a medical history from the Veteran pertaining to her condition, to include information as to the onset of her symptomatology and her eventual diagnosis. a. Following the examination, the clinician is asked to provide a medical opinion as to whether it is at least as likely as not the Veteran's multiple sclerosis had its onset in service or is otherwise related to service. In rendering the requested opinion, the Board requests the clinician to: i. Provide an overview of the claimed disability, multiple sclerosis, to include a description of the disability, its development, associated symptoms, and clinical findings suggestive or indicative of the condition per medical literature or other pertinent sources. ii. Address the Veteran's in-service symptomatology, the available clinical findings in the STRs- to include laboratory test results of record, and whether such symptomatology and/or objective findings are at least as likely as not associated with or suggestive of multiple sclerosis, and explain why. The Board acknowledges the STRs of record do not document an in-service diagnosis of multiple sclerosis. Nonetheless, the examiner is asked to analyze the available evidence of record, medical and lay, and provide a medical opinion as to whether such evidence supports or suggests an in-service onset of multiple sclerosis or not, without solely relying on the lack of an in-service diagnosis of multiple sclerosis as determinative on the matter. If the clinician cannot provide the above requested opinion, the clinician is advised that he/she should explain why the requested opinion cannot be provided (e.g., lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, or insufficient knowledge or expertise of the individual clinician). If the clinician cannot provide the opinion because further information is needed to assist in making the determination, such as additional information, records and/or diagnostic studies, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided. For purposes of the requested opinion, the clinician is requested to assume the Veteran's credibility has been conceded. 4. After completing the above requested actions, and any additional notification and/or development deemed warranted, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, furnish to the Veteran and her representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gonzalez-Maldonado, Belmari 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.