Citation NR: 9739103 Decision Date: 11/24/97 Archive Date: 12/03/97 DOCKET NO. 95-38 926 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for multiple sclerosis. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Deborah J. Drucker, Associate Counsel REMAND The veteran had active service from September 1955 to September 1959 and from October 1961 to September 1982. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The veteran contends that the evidence of record supports his claim for service connection for multiple sclerosis. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Multiple sclerosis will be presumed to have been incurred in service if it was manifested to a compensable degree within seven years of the veteran’s separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1996). Thus, the veteran would be entitled to service connection for multiple sclerosis if it is demonstrated that he had the disability in service; further, it will be presumed that the disease was incurred in service if it was manifested to a compensable degree within seven years following his separation from active service, that is, by September 1, 1989. A review of the medical evidence reveals varied diagnoses of the veteran’s disorder. A private magnetic resonance imaging (MRI) report dated in December 1987 included key findings most likely representing demyelinating process and a June 1988 VA clinical record shows an assessment of probable multiple sclerosis. The findings of a November 1990 private MRI report were most consistent with plaques of multiple sclerosis and the assessment of a September 1992 private neurological report was probable multiple sclerosis. Nevertheless, in November 1993, a VA physician found that the veteran had possible multiple sclerosis that was unproven and suggested further testing, including lumbar punctures, was needed to reach a definite diagnosis. In a February 1994 addendum, the VA examiner commented that MRI scan of the head was quite sensitive, but not diagnostic, and that more extensive evaluation was needed to make a confirmed diagnosis. Multiple sclerosis was not established by the evidence of record, in the May 1994 opinion of a VA physician who reviewed the veteran’s claims files. At his September 1996 personal hearing at the RO, the veteran testified that he asked his VA treating physician about undergoing a lumbar puncture test and was advised that it would not show definite results unless he was experiencing an episode of multiple sclerosis at the time of the study. It is unclear if such a study was ever performed. In October 1997, Craig N. Bash, M.D., a neuroadiologist and Deputy Director of Medical Services for the veteran’s service organization, reviewed the veteran’s service and post service medical records. Dr. Bash opined that the veteran’s multiple MRI scans over time were clearly diagnostic and consistent with multiple sclerosis that originated in service. The Board finds that the veteran has submitted a well- grounded claim and that further examination is warranted with respect to his claimed disability. The VA has a duty to assist a veteran in developing facts pertinent to a potentially well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.103, 3.159 (1994). That duty includes obtaining medical records and medical examinations where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990). Accordingly, the veteran’s claim is REMANDED to the RO for the following actions: 1. The RO should request the veteran to provide the names, addresses and approximate dates of treatment for all health care providers who may possess additional records pertinent to his claim. With any necessary authorization from the veteran, the RO should attempt to obtain and associate with the claims file any records identified by the veteran that are not already of record, including reports of any lumbar puncture studies that may have been performed. 2. Then, the RO should schedule the veteran for a fee basis examination by a neurologist with expertise in the diagnosis and treatment of multiple sclerosis to determine the nature, extent, etiology and correct diagnosis of any neurological disability found present. All necessary and appropriate diagnostic tests and procedures should be conducted, to include a period of hospitalization for observation and evaluation, if indicated. If the examining physician determines that multiple sclerosis or other condition accounting for the veteran’s symptoms is present, an opinion should be expressed as to the likelihood that the medical evidence of record, including service and post service medical records, demonstrates that such condition was present or manifested prior to September 1, 1989. The examining specialist must be provided with the veteran’s claims files and a complete copy of this Remand order, and should review the veteran’s service medical records and all records of post service treatment prior to examination. A complete rationale for all opinions expressed must be provided. 3. Following completion of the above, the RO should review the claims folders and ensure that all the requested development has been completed in full. Thereafter, the RO should undertake any other indicated development and readjudicate the issue of entitlement to service connection for multiple sclerosis. If the benefit sought on appeal is not granted to the veteran’s satisfaction, the veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is otherwise notified by the RO. WAYNE M. BRAEUER Member, Board of Veterans' Appeals 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 -