Citation NR: 9708035 Decision Date: 03/13/97 Archive Date: 03/25/97 DOCKET NO. 96-19 725 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUE Entitlement to service connection for multiple sclerosis (MS). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD K. Parakkal, Associate Counsel INTRODUCTION The veteran served on active duty in the Navy from August 1971 to August 1973. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 1996 RO decision which denied service connection for MS. In a February 1997 informal hearing presentation, the veteran’s representative related that the veteran desired service connection for hypertension; as this claim has not been developed for appellate review, it is referred to the RO for appropriate action. REMAND The veteran’s claim for service connection for MS is well grounded (i.e., not inherently implausible) within the meaning of 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1996). For reasons discussed below, the Board finds that further action is required by the VA in order to comply with its duty to assist him in developing evidence pertinent to his claim. Id.; 38 C.F.R. §§ 3.103, 3.159 (1996). Service incurrence for MS will be presumed if manifest to a compensable level within seven years of the veteran’s separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309. The veteran served on active duty in the Navy from August 1971 to August 1973; he also says he served in the Naval Reserve until 1976. A review of the claims file reveals that an April 1970 enlistment examination report is the only service medical record on file. In a February 1997 informal hearing presentation, the veteran’s representative requested that the case be remanded for further development, to obtain service medical records, from his 1971-1973 active duty in the Navy, as well as any Naval Reserve service. The Board agrees such is warranted as part of the duty to assist. Murphy v. Derwinski, 1 Vet.App. 78 (1990). Additionally, the duty to assist requires that an effort be made to obtain any outstanding medical records regarding MS since the veteran’s release from active service. Id. In February 1997, the veteran’s representative submitted, directly to the Board, a statement, dated that month, from Craig Bash, M.D., together with copies of medical records from the claims folder which are discussed in the doctor’s statement. Dr. Bash is affiliated with the service organization which represents the veteran. The statement from Dr. Bash reflects his opinion that the veteran’s symptoms, in February 1980, were very likely the first manifestations of MS and that he may have had some “soft findings” of MS as early as August 1978 (i.e., it was opined that MS was manifest within the 7 year presumptive period for service incurrence). The evidence, submitted in February 1997, was received at the Board within 90 days of the notice to the veteran that his appeal had been certified and transferred to the Board. Legal authority provides, in part, that unless there is proper waiver (and there is none in the present case), additional evidence must first be addressed by the RO and made the subject of a supplemental statement of the case. 38 C.F.R. § 20.1304(c). Consequently, as a matter of due process, the RO must initially address the evidence and provide a supplemental statement of the case. Id. Moreover, given the evidence suggesting that the veteran had MS within the 7 year presumptive period, the Board finds that a current examination is warranted, as part of the VA’s duty to assist, to determine the nature and etiology of the MS. Green v. Derwinski, 1 Vet.App. 121 (1991). Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should contact the National Personnel Records Center (NPRC) and obtain all of the veteran's service medical records, from both active service and Reserve service. This should include contact with the NPRC and all other service department records repositories which might hold the documents. 2. The RO should ask the veteran to identify (names, addresses, dates) all sources of VA and non-VA medical examination and treatment for MS or MS like symptoms, since his release from active service in 1973, including Crouse- Irving Memorial Hospital, and Drs. Sherry Rogers, Slowick, Hewitt, Gigantelli, Rogers, Stewart, Marlow, Sebesta, Santana, Ecker, Gifford, Aaron Miller, Greene, and Shah. The RO, following the procedures of 38 C.F.R. § 3.159, should obtain copies of the related treatment records from the identified sources. 3. After the above records are added to the file, or if they cannot be obtained, the veteran should undergo a VA neurological examination to determine the nature and etiology of his MS. The claims folder must be made available to the examiner and reviewed in conjunction with the examination. Following examination and review of the historical records, the doctor should offer a medical opinion as to the date on which MS first became manifest (even if the disease was not diagnosed until later); such opinion should be supported by full rationale and reference to specific medical records on file. Thereafter, the RO should review the claim for service connection for MS. If the RO denies the claim, the veteran and his representative should be furnished a supplemental statement of the case and given an opportunity to respond. The case should then be returned to the Board for further appellate consideration. L.W. TOBIN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1996). - 2 -