Citation Nr: 9823599	
Decision Date: 07/09/98    Archive Date: 08/04/98

DOCKET NO.  97-29 095	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, 
Alabama


THE ISSUE

Whether new and material evidence has been submitted to 
reopen a claim of entitlement to service connection for 
multiple sclerosis.


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, 
Inc.


INTRODUCTION

The veteran served on active duty from April 1954 to November 
1957, and from January 1958 to January 1968.


This appeal arose from a February 1997 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Montgomery, Alabama.  The RO determined that new and material 
evidence had not been submitted to reopen a claim of 
entitlement to service connection for multiple sclerosis.

The case has been forwarded to the Board of Veterans’ Appeals 
(Board) for appellate review.


CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that he has submitted new and material 
evidence not only to reopen his claim for entitlement to 
service connection for multiple sclerosis, but to warrant a 
grant of service connection.


DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A. 
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered 
all of the evidence and material of record in the veteran's 
claims file.  

Based on its review of the relevant evidence in this matter, 
and for the following reasons and bases, it is the decision 
of the Board that new and material evidence has been 
submitted to reopen a claim of entitlement to service 
connection for multiple sclerosis.


FINDINGS OF FACT

1.  The veteran did not timely perfect a substantive appeal 
from an April 1990 rating decision wherein the RO declined to 
reopen a previously denied claim of entitlement to service 
connection for multiple sclerosis.

2.  The evidence received since the April 1990 rating 
decision is new and material, probative of the issue at hand, 
and when viewed in the context of all the evidence of record, 
both new and old, raises a reasonable possibility of changing 
the prior outcome.


CONCLUSION OF LAW

Evidence submitted subsequent to the April 1990 rating 
decision wherein the RO declined to reopen a previously 
deneid claim of entitlement to service connection for 
multiple sclerosis is new and material, and the veteran’s 
claim for that benefit has been reopened.  38 U.S.C.A. §§ 
5107, 5108, 7105 (West 1991);  38 C.F.R. § 3.156(a) (1997).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Factual Background

The evidence which was of record prior to the April 1990 
rating decision wherein the RO declined to reopen the 
previously deneid the claim of entitlement to service 
connection for multiple sclerosis will be briefly summarized 
below.

The service medical records disclosed the veteran received 
treatment for vertigo, dizziness, and light headedness in 
1966.  He was considered to be suffering from labyrinthitis 
of unknown etiology.  

A post service January 1968 VA special neurological 
examination was negative for any neurological disorder.

A March 1980 VA examination concluded in diagnoses of 
degenerative disc disease with associated arthritis at C-6 
and C-7, and recurrent neuritis of the right radial nerve.

VA hospital summaries pertaining to inpatient care of the 
veteran during August and September 1987 show the veteran was 
suspected of having functional disease.  A magnetic resonance 
imaging of the head concluded in a finding that multiple 
sclerosis was to be ruled out.

A March 1990 report from the veteran’s private physician 
shows it was his opinion that the veteran may have multiple 
sclerosis.

Evidence associated with the claims file subsequent to the 
April 1990 rating decision wherein the RO declined to reopen 
the previously deneid claim of entitlement to service 
connection for multiple sclerosis will be reported below.

The veteran submitted copies of private treatment reports 
dated during the early and mid 1990’s primarily referable to 
nonpertinent disorders.

The veteran submitted copies of excerpts from private medical 
treatises pertaining to the nebulous onset of multiple 
sclerosis.

The veteran submitted correspondence dated in 1991 from a 
private physician noting that his diagnosis was most likely 
multiple sclerosis.  

The veteran submitted a copy of an October 1986 magnetic 
resonance imaging the diagnostic impression of which was 
noted to be consistent with demyelinating process such as 
multiple sclerosis.

The veteran’s wife provided her knowledge and observations of 
the symptomatology displayed by the veteran subsequent to 
service.

Submitted in February 1998 was a statement from Craig N. 
Bash, M.D., a neuroradialogist, who identified himself as the 
Deputy Director of Medical Services for the Paralyzed 
Veterans of America.  Dr. Bash noted he had reviewed the 
veteran’s claims file to include his service medical records.  
He noted as follows:

“The veteran served on active duty from 
April 1954 until November 1957 and from 
January 1958 through January 1968.  A 
careful longitudinal review of the 
service clinical records reveals a 
history of vision problems and other 
neurological symptoms that can be related 
to multiple sclerosis.  In November of 
1962, the veteran was hospitalized for 
paralysis of his right facial muscles.  
Physical examination revealed “sensory 
perception was intact over the face 
generally, although pain and perception 
was diminished over the right anterior 
2/3 of the tongue.  There was paralysis 
of all muscle of facial expressions over 
the right side of face with exception of 
some preservation of right orbicularis 
oculi.  Cranial nerves 8-12 were intact.  
Motor, sensory, and coordination were 
normal and DTRs were symmetrical and 
active.  No pathological reflexes were 
elicited.”  The diagnosis was neuropathy 
of facial nerve,  cause unknown.

In October 1963 the veteran was seen for 
visual disturbances, to include residual 
headaches and blurred vision.  Distance 
vision was listed as OD 20/20 OS 20/20.  
Near vision was OD 20/20 OS 20/20.  In 
November 1963, he was seen for “vision 
blurred at night.”  No prescription was 
given at that time.  In March 1964 the 
veteran was seen with a complaint of 
blurred vision.  In April 1964 the 
veteran was to be seen for visual 
disturbances.  He had experienced 
asthenopia with his near vision.  He had 
experienced “blurred vision” with 
distance O.S.  In April 1964, the veteran 
was given an ophthalmology survey.  He 
experienced inability to do sustained 
close work.  After 15 minutes, he 
experienced headaches, redness and 
tearing of both eyes.  The examiner 
stated: “Unable to reconcile his marked 
discomfort with his normal vergences, 
versions and fusional amplitudes.  Will 
refract and consider a reading RX.”

In November 1965 the veteran experienced 
numbness in his right arm and shoulder.  
There was no history of any trauma.  He 
did have a cervical sebaceous cyst.  
However, the impression was that “the 
pain bears no relation to an incidental 
cyst.  There is without question a 
fasciitis or myositis of a rheumatoid 
group.”  In September 1966 the veteran 
was hospitalized for a history of severe 
vertigo.  He was treated with Diuril, 
Nicotinic acid, and Benadryl with minimal 
relief of symptomatology.

The veteran again developed vertiginous 
symptoms in the summer of 1986.  He also 
developed tremors in his right hand.  An 
MRI taken in October 1986 was consistent 
with MS.  Please note that more recent 
medical research indicates that MRI is 
the most sensitive noninvasive method 
available to detect areas of 
demyelination and has a profound effect 
on the diagnosis of MS.  MRI can detect 
multiple lesions in 90% of patients with 
clinically definite MS and is often used 
to confirm the diagnosis of MS.

The dispositive issue on appeal concerns 
(1) Does the evidence of record support 
the diagnosis of MS, and if so, (2) Is 
the etiology of the veteran’s multiple 
sclerosis relative to his period of 
service?  In my opinion, the evidence of 
record indicates that multiple sclerosis 
was incurred in military service.  That 
this veteran currently has a disability 
which is related to service.  The veteran 
exhibited symptoms consistent with 
multiple sclerosis while on active duty.  
Namely, he had headaches and visual 
blurring that was not a result of 
refractive error.  He also experienced 
numbness in his right arm and shoulder.  
He had a history of vertigo while on 
active duty.  These same symptoms 
precipitated neurological examinations in 
1986.  The diagnosis of MS was 
contemplated.  As such, a reasonable 
basis has been presented to support the 
grant of service connection for multiple 
sclerosis.

IMPRESSION:

In my opinion the above mentioned 
neurological changes and MRI changes are 
multiple sclerosis.  Therefore, it is at 
least as likely as not that the veteran’s 
first manifestations of multiple 
sclerosis occurred while the veteran was 
on active duty.”

Criteria

The well groundedness requirement shall not apply with regard 
to reopening disallowed claims and revising prior final 
determinations.  Jones v. Brown, 7 Vet. App. 134 (1994).

When a claimant seeks to reopen a finally denied claim, the 
Board must review all of the evidence submitted since that 
action to determine whether the claim should be reopened and 
readjudicated on a de novo basis.  Glynn v. Brown, 6 Vet. 
App. 523, 529 (1994).  In order to reopen a finally denied 
claim there must be new and material evidence presented since 
the time the claim was last finally disallowed on any basis, 
not only since the claim was last denied on the merits.  
Evans v. Brown, 9 Vet. App. 273 (1996).


When the veteran seeks to reopen his claim under 38 U.S.C.A. 
§ 5108, the Board must conduct a two-step analysis.  First, 
the Board must determine whether the evidence submitted since 
the previous denial is "new and material.” Second, if the 
evidence is found to be new and material, the claim is to be 
reopened and the Board must then “assess the new and 
material evidence in the context of the other evidence of 
record and make new factual determinations."  Masors v. 
Derwinski, 2 Vet. App. 181, 185 (1992) (quoting Godwin v. 
Derwinski, 1 Vet. App. 419, 425 (1991)), and Jones v. 
Derwinski, 1 Vet. App. 210, 215 (1991)).

For the purpose of establishing whether new and material 
evidence has been submitted, the credibility of the evidence 
is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 
(1992).

“New and material evidence” means evidence not previously 
submitted to agency decision makers which bears directly and 
substantially upon the specific matter under consideration, 
which is neither cumulative nor redundant, and which by 
itself or in connection with evidence previously assembled is 
so significant that it must be considered in order to fairly 
decide the merits of the claim.  38 C.F.R. § 3.156(a) (1997).

The United States Court of Veterans Appeals (Court) has held 
that “new” evidence is that which is not merely cumulative 
of other evidence of record, and that “material” evidence 
is that which is relevant and probative of the “issue at 
hand” and which is of sufficient weight or significance 
(assuming its credibility) to establish a reasonable 
possibility that the outcome would change when it is 
considered in the context of all evidence, both new and old.  
Cox v. Brown, 5 Vet. App. 95 (1993);  Colvin v. Derwinski, 1 
Vet. App. 171, 174 (1991) (emphasis added); see also 
38 C.F.R. § 3.156.

The Court recently clarified that, with respect to the issue 
of materiality, the newly presented evidence need not be 
probative of all the elements required to award the claim as 
in this case dealing with a claim for service connection.  
Evans v. Brown, 9 Vet. App. 273, 284 (1996).

However, such evidence must tend to prove the merits of the 
claim as to each essential element that was a specified basis 
for the last final disallowance of the claim.  If the 
evidence is “new” and “probative,” then it must be 
determined whether the evidence presents a reasonable 
possibility of changing the outcome of the prior decision 
based on all the evidence.  If these conditions are met, then 
the evidence is both “new” and “material.”  Id. at 284.

Under Evans, 9 Vet. App. 273 (1996), evidence is new and 
material if it (1) is “new” in that it was not previously 
of record and is not merely cumulative of evidence previously 
of record, (2) is “probative” of the issue at hand, and (3) 
in light of all the evidence of record, it raises a 
reasonable possibility of that the outcome would change.

The “issue at hand” pertaining to the petition to reopen 
the finally denied claim for service connection for multiple 
sclerosis is whether such disorder was manifested in service 
or to a compensable degree during the initial seven year 
period following service.

Analysis

The veteran seeks to reopen his claim for service connection 
for multiple sclerosis which the RO declined to reopen in an 
April 1990 rating decision.  When a claim is finally denied 
by the RO, the claim may not thereafter be reopened and 
allowed, unless new and material evidence has been presented.  
The Board also notes that previous rating actions which are 
final and binding will be accepted as correct in the absence 
of clear and unmistakable error.  38 C.F.R. § 3.105(a) 
(1997).

The Board finds that new and material evidence sufficient to 
reopen the veteran’s claim of entitlement to service 
connection for multiple sclerosis has been submitted.  In 
this regard the Board notes that the veteran has submitted 
private medical excerpts pertaining to multiple sclerosis.  
Such excerpts describe the rather nebulous developmental 
aspects of this disorder and raise a reasonable possibility 
that various symptomatology experienced by the veteran in 
service may well have been consistent with nascent multiple 
sclerosis.  



Also submitted were correspondence and medical documentation 
pertaining to multiple sclerosis and its treatment and 
evaluation.  This evidence in and of itself is not new and 
material as it merely relates to post service treatment of 
the veteran for the subject disorder at issue and there is no 
opinion of a nexus of such disorder to the veteran’s period 
of service.  

Correspondence from the veteran’s wife provides her knowledge 
and observations of the veteran’s symptomatology, and while 
informative, is not from a trained medical specialist and 
therefore cannot be evaluated on the basis of providing a 
nexus of the disability at issue to the veteran’s period of 
service.  Espiritu v. Derwinski, 2 Vet. App. 492 (1992).

The most important item of evidence submitted to reopen the 
claim for service connection for multiple sclerosis is the 
medical statement from a private physician dated in February 
1998.  He identified himself as the Deputy Director of 
Medical Services for the Paralyzed Veterans of America.  He 
noted his review of the entire evidentiary record and 
expressed the opinion that clinical symptomatology complained 
of and experienced by the veteran and clinical findings as 
reported in the service medical records were collectively at 
least as likely as not manifestations of the post service 
diagnosed multiple sclerosis.  This evidence in and of itself 
provides a substantial basis upon which to predicate a 
reopening of the veteran’s claim for service connection for 
multiple sclerosis.

In this regard, the Board notes that this evidence is 
probative of the issue at hand; that is, was multiple 
sclerosis manifested in service or during the presumptive 
period following service.  This opinion of the physician set 
out above provides a basis upon which to permit the Board to 
conclude that the veteran’s claim should be reopened, thereby 
providing an opportunity for adjudication of the issue of 
entitlement to service conection for multiple sclerosis on a 
de novo basis.


ORDER

The veteran having submitted new and material evidence to 
reopen a claim of entitlement to service connection for 
multiple sclerosis, the appeal is granted to this extent.


REMAND

This claim must be afforded expeditious treatment by the RO.  
The law requires that all claims that are remanded by the 
Board of Veterans’ Appeals or by the Court for additional 
development or other appropriate action must be handled in an 
expeditious manner.  See The Veterans’ Benefits Improvements 
Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 
(1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and 
Statutory Notes).  In addition, VBA’s ADJUDICATION PROCEDURE 
MANUAL, M21-1, Part IV, directs the ROs to provide 
expeditious handling of all cases that have been remanded by 
the Board and the Court.  See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.

As the Board determined above, new and material evidence has 
been submitted to reopen the claim of entitlement to service 
connection for multiple sclerosis.  In this regard, the 
veteran should be given an opportunity to submit any 
additional evidence he may have in support of his claim.  
Also, the claims file should be reviewed by a VA physician 
who should render an opinion as to the likelihood that 
multiple sclerosis had its onset in service in view of the 
private medical opinion on record suggesting that this may be 
the case.

Therefore, pursuant to VA’s duty to assist the veteran in the 
development of facts pertinent to his claim under 38 U.S.C.A. 
§ 5107(a);  38 C.F.R. § 3.103(a) (1997), the Board will not 
decide the issue of entitlement to service connection for 
multiple sclerosis pending a remand of the case to the RO for 
further development as follows:





1.  The RO should contact the veteran and 
request that he identify the names, 
addresses, and approximate dates of 
treatment for all medical health care 
providers who have treated him for 
multiple sclerosis since separation from 
service.  After obtaining any necessary 
authorization, the RO should request and 
associate with the claims file legible 
copies of the veteran’s complete 
treatment reports from all sources 
identified whose records have not 
previously been secured.  Regardless of 
the veteran’s response, the RO should 
secure all outstanding VA treatment 
reports.

2.  The RO should arrange for a VA 
examination (fee basis if necessary) by a 
neurologist for the purpose of 
ascertaining the nature, extent of 
severity, and etiology of multiple 
sclerosis.  The claims file and a 
separate copy of this remand must be made 
available to and reviewed by the examiner 
prior and pursuant to conduction and 
completion of the examination.  Any 
further indicated special studies should 
be conducted.  The examiner must be 
requested to express an opinion as to 
whether multiple sclerosis was in 
evidence in service in view of the 
service medical documentation of record.  
If the examiner does not feel that 
multiple sclerosis was in evidence in 
service, the examiner must be requested 
to express an opinion as to the most 
likely date of onset or date that 
multiple sclerosis was first manifest 
subsequent to the veteran’s separation 
from service.  Any opinions expressed 
must be accompanied by a complete 
rationale.

3.  Thereafter, the RO should review the 
claims file to ensure that all of the 
foregoing requested development has been 
completed.  In particular, the RO should 
review the requested examination report 
and required opinions to ensure that they 
are responsive to and in complete 
compliance with the directives of this 
remand and if they are not, the RO should 
implement corrective procedures.

4.  After undertaking any development 
deemed essential in addition to that 
specified above, the RO should adjudicate 
the issue of entitlement to service 
connection for multiple sclerosis on a de 
novo basis.

If the benefit requested on appeal is not granted to the 
veteran’s satisfaction, the RO should issue a supplemental 
statement of the case.  A reasonable period of time for a 
response should be afforded.  Thereafter, the case should be 
returned to the Board for final appellate review, if 
otherwise in order.  By this remand, the Board intimates no 
opinion as to any final outcome warranted.  No action is 
required of the veteran until he is notified by the RO.



		
	RONALD R. BOSCH
	Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West 
1991 & Supp. 1997), a decision of the Board of Veterans’ 
Appeals granting less than the complete benefit, or benefits, 
sought on appeal is appealable to the United States Court of 
Veterans Appeals within 120 days from the date of mailing of 
notice of the decision, provided that a Notice of 
Disagreement concerning an issue which was before the Board 
was filed with the agency of original jurisdiction on or 
after November 18, 1988.  Veterans’ Judicial Review Act, Pub. 
L. No. 100-687, § 402 (1988).  The date that appears on the 
face of this decision constitutes the date of mailing and the 
copy of this decision that you have received is your notice 
of the action taken on your appeal by the Board of Veterans’ 
Appeals.  Appellate rights do not attach to those issues 
addressed in the remand portion of the Board’s decision, 
because a 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) (1997).
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