Citation Nr: 9918052	
Decision Date: 06/30/99    Archive Date: 07/07/99

DOCKET NO.  96-47 296	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, 
Pennsylvania


THE ISSUE

Entitlement to service connection for multiple sclerosis.  


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, 
Inc.


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Richard Giannecchini,  Associate Counsel



INTRODUCTION

The veteran had active military service from September 1968 
to December 1970.  

A perfected appeal to the Board of Veterans' Appeals (Board) 
of a particular decision entered by a Department of Veterans 
Affairs (VA) regional office (RO) consists of a Notice of 
Disagreement (NOD) in writing received within one year of the 
decision being appealed and, after a Statement of the Case 
(SOC) has been furnished, a substantive appeal (VA Form 9) 
received within 60 days of the issuance of the Statement of 
the Case or within the remainder of the one-year period 
following notification of the decision being appealed.  The 
present appeal arises from an August 1995 rating decision, in 
which the RO denied the veteran's claim of entitlement to 
service connection for multiple sclerosis.  The veteran filed 
an NOD in August 1996, and an SOC was issued by the RO in 
September 1996.  The veteran filed a substantive appeal in 
October 1996.  In January 1997, the veteran testified before 
a hearing officer at the VARO in Pittsburgh.  Supplemental 
statements of the case (SSOC) were issued in February 1997 
and June 1998.  


FINDINGS OF FACT

1. All evidence necessary for an equitable disposition of the 
veteran's appeal has been obtained by the RO.  

2. The veteran was definitely diagnosed with multiple 
sclerosis in 1988. 

3. The veteran reported that he suffered from diplopia, as 
well as chronic fatigue, muscle pain and weakness, shortly 
after separating from active service.  

4. Medical opinions in September 1996 and May 1999 noted that 
the veteran's reports of blurred vision and chronic 
fatigue were typical symptomatology of multiple sclerosis, 
and that the onset of the disease occurred in 1975.

5. The record presents an approximate balance of positive and 
negative evidence as to whether the veteran's multiple 
sclerosis was either incurred in service or manifested 
during the seven-year presumption period following his 
active military service.  


CONCLUSION OF LAW

Granting the benefit of the doubt to the veteran, the Board 
concludes that his multiple sclerosis was either incurred 
during service or manifested during the seven-year period 
following his separation from service.  38 U.S.C.A. §§ 1110, 
1112, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.307 (1998).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Factual Basis

A review of the veteran's service medical records does not 
reflect any findings or diagnosis indicative of multiple 
sclerosis, or apparent symptoms of the disease.  

In February 1995, the veteran submitted to the RO a VA Form 
21-526 (Veteran's Application for Compensation or Pension), 
in which he filed a claim of service connection for multiple 
sclerosis.  In March 1995, the RO received a statement from 
the veteran, dated that same month, as well as medical 
records consisting of clinical summaries and tests, dated 
from November 1986 to May 1990.  In his statement, the 
veteran noted that he had suffered from flickering and double 
vision in May 1975.  He stated that he was treated by an 
ophthalmologist who found these eye problems to be the result 
of stress and overwork.  The veteran stated that he 
subsequently took a vacation and the symptoms disappeared in 
a few weeks.  As for the ophthalmology records associated 
with his treatment, the veteran reported that the records 
were no longer available because the doctor had died and the 
records had been destroyed.

In addition, clinical summaries and tests noted diagnoses and 
findings for multiple sclerosis.  In particular, a summary 
from Kenneth Ott, M.D., dated in November 1986, noted the 
veteran's complaints of numbness in the right trunk, arm, and 
leg following a fall in 1980, as well as transient weakness 
in the lower extremities and numbness in the hands after a 
fall in 1986.  Dr. Ott reported that the veteran had no 
history of remissions or exacerbations, nor was there a 
history consistent with other demyelinating episodes outside 
of the cervical spinal cord.  

In August 1995, the veteran was medically examined for VA 
purposes, and underwent both general and cranial nerves 
examinations.  He reported, to the general medical examiner, 
a history of visual symptoms from the time he was in the 
service in 1970, with subsequent development of weakness, 
speech problems, parasthesias, numbness of the right side of 
his body, and difficulty in swallowing.  To the cranial 
nerves examiner, he reported diplopia in 1975 which lasted 
for a few months, and also reported suffering from chronic 
fatigue at that time.  In addition, the veteran noted post-
service development of muscle weakness, and paresthesia of 
the right side of his body.  He indicated that a spinal tap 
in 1985 had revealed elevated protein levels, and that, upon 
admission to a hospital in 1986, he was diagnosed with 
multiple sclerosis following an MRI (magnetic resonance 
imaging) scan.  The examiners' assessments noted a finding of 
multiple sclerosis.  

In August 1996, the RO received personal statements from the 
veteran's son and ex-wife.  Both individuals recounted the 
veteran's temporary sight problem in 1975, as well as his 
problems with chronic fatigue.  In October 1996, the RO 
received a VA Form 9 (Appeal to the Board of Veterans' 
Appeals), undated, in which the veteran contended that he had 
begun to experience symptoms of multiple sclerosis in 
service, which he reported as muscle weakness and vision 
problems.  

In January 1997, the RO received a statement from the 
veteran, dated that same month, in which he reiterated 
complaints of chronic fatigue beginning in 1971, and a 
temporary sight problem in 1975.  The veteran also noted that 
he had suffered from severe muscle spasms in his neck and 
shoulders in 1976, and was treated for the problem by Ronald 
Nikolich, D.C., in 1977.  The veteran stated that Dr. 
Nikolich subsequently referred him to neurological 
specialists who diagnosed a pinched nerve in his neck.  In 
addition, the veteran noted that his muscle spasms had 
continued throughout this period, resulting in paralysis of 
his right side and chronic right foot drop, as well as 
chronic numbness in the right forearm.  He reported that 
subsequent treatment and tests from additional doctors 
subsequently led to a finding of multiple sclerosis.  

In addition to his statement, the veteran also submitted 
statements from Richard Weisman, M.D., and Dr. Nikolich, 
dated in September and December 1996, respectively.  Dr. 
Weisman noted that, while the veteran's diagnosis of multiple 
sclerosis had not been confirmed until 1988, he clearly had 
symptoms for quite some time prior to that period.  Dr. 
Weisman stated that this was not an uncommon situation with 
multiple sclerosis, especially in the pre-MRI-scan era when 
it was often difficult to establish the diagnosis by 
objective tests.  He opined that the veteran's reports of 
blurred vision and chronic fatigue were quite typical 
symptomatology of multiple sclerosis, and that, in his 
opinion, the onset of the disease was at least as early as 
1975.  Dr. Nikolich noted that the veteran had been his 
patient from October 1977 until August 1983, and that the 
veteran had experienced pain in his neck, shoulders, and back 
from cervical abnormalities in the C1-C6 area.  He also noted 
that the veteran's condition deteriorated from muscle spasms 
to paralysis over the course of time.  Dr. Nikolich indicated 
that the veteran had been referred to other doctors, but they 
had been unable to provide a specific diagnosis or any 
successful treatment for his physical problems.  He further 
opined that, given the veteran's history and the current 
diagnosis of multiple sclerosis, the veteran had had multiple 
sclerosis since at least October 1977.  

In January 1997, the veteran testified before a hearing 
officer at the VARO in Pittsburgh.  Under questioning, the 
veteran recounted previously made contentions regarding his 
condition, and also stated that he had sought treatment for a 
problem with his knee in service, which had not been related 
to any previous trauma.  He noted that his knee had given out 
on him in 1980 and 1986, and he believed all three incidents 
were interrelated and were symptoms of his multiple 
sclerosis.  The veteran also noted that Dr. Nikolich no 
longer had his treatment records, since he had sold his 
practice, and the new owners had destroyed the old records.  
The veteran testified that Dr. Nikolich knew him well, and 
had treated him for 10 years, and had recounted his treatment 
history from memory.  

In August 1997, the RO received an additional statement from 
the veteran, dated in April 1997; as well as test results of 
a cytotoxic test ordered by Dr. Nikolich in 1977; and 
unidentified medical records, dated from July 1993 to January 
1997.  The veteran, in his statement, reiterated previously 
made contentions regarding his claim.  The cytotoxic test was 
noted as testing for reactive foods, dyes, and chemicals.  
The medical records noted additional diagnoses of multiple 
sclerosis.  

Thereafter, in May 1999, the veteran's service representative 
submitted a statement from Craig Bash, M.D., a 
neuroradiologist and Assistant Professor of Radiology and 
Nuclear Medicine at the Uniformed Services University of the 
Health Sciences.  In his lengthy and detailed statement, Dr. 
Bash recounted the veteran's medical history, apparently 
following a review of the veteran's claims file, including 
the hearing testimony by the veteran at the January 1977 
personal hearing.  In addition, he cited to a May 1999 
statement from Dr. Nikolich (which is not of record), in 
which Dr. Nikolich apparently reported that, without the date 
of the cytotoxic test, he might have had difficulty 
remembering the exact month he had treated the veteran, but, 
with the test date, it had been easy to recall.  Dr. Bash 
noted that the evidence prior to the veteran's diagnosis of 
multiple sclerosis was very credible and was consistent with 
the waxing and waning that occurs frequently in the early 
stages of the disease.  He noted that, before the 
availability of MRI testing for diagnostic purposes, MS often 
took several years to be definitively diagnosed.  His 
impression was that the first symptoms of multiple sclerosis 
were likely the veteran's eye problems that occurred in 1975.  
In the alternative, he noted that the symptoms described by 
the veteran's son and Dr. Nikolich were very likely symptoms 
of multiple sclerosis.  

II.  Analysis

The Board's threshold question must be whether the veteran 
has presented a well-grounded claim.  38 U.S.C.A. § 5107 
(West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990).  If 
he has not, the claim must fail and there is no further duty 
to assist in its development.  38 U.S.C.A. § 5107; Murphy v. 
Derwinski, 1 Vet.App. 78 (1990).  This requirement has been 
reaffirmed by the United States Court of Appeals for the 
Federal Circuit in its decision in Epps v. Gober, 126 F.3d 
1464, 1469 (Fed. Cir. 1997), cert. denied sub nom. Epps v. 
West, 118 S. Ct. 2348 (1998).  That decision upheld the 
earlier decision of the United States Court of Appeals for 
Veterans Claims (known previously as the United States Court 
of Veterans Appeals, prior to March 1, 1999), which made 
clear that it would be error for the Board to proceed to the 
merits of a claim which is not well grounded.  Epps v. Brown, 
9 Vet.App. 341 (1996).

The Court of Appeals for Veterans Claims has also held that, 
in order to establish that a claim for service connection is 
well grounded, there must be competent evidence of:  (1) a 
current disability (a medical diagnosis); (2) the incurrence 
or aggravation of a disease or injury in service (lay or 
medical evidence); and (3) a nexus (that is, a connection or 
link) between the in-service injury or aggravation and the 
current disability.  Competent medical evidence is required 
to satisfy this third prong.  See Elkins v. West, 12 Vet.App. 
209, 213 (1999) (en banc), citing Caluza v. Brown, 7 Vet.App. 
498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) 
(table), and Epps, supra.  "Although the claim need not be 
conclusive, the statute [38 U.S.C.A. §5107] provides that 
[the claim] must be accompanied by evidence" in order to be 
considered well grounded.  Tirpak v. Derwinski, 2 Vet. App. 
609, 611 (1992).  In a claim of service connection, this 
generally means that evidence must be presented which in some 
fashion links the current disability to a period of military 
service or to an already service-connected disability.  
38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 
(1998); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992); 
Montgomery v. Brown, 4 Vet.App. 343 (1993).

Evidence submitted in support of the claim is presumed to be 
true for purposes of determining whether it is well grounded.  
King v. Brown, 5 Vet.App. 19, 21 (1993). Lay assertions of 
medical diagnosis or causation, however, do not constitute 
competent evidence sufficient to render a claim well 
grounded. Grottveit v. Brown, 5 Vet.App. 91, 93 (1992); 
Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992).

Under applicable criteria, service connection may be granted 
for a disability resulting from disease or injury which was 
incurred in, or aggravated by, service.  38 U.S.C.A. §§ 1110 
(West 1991).  To establish a showing of chronic disease in 
service, there is required a combination of manifestations 
sufficient to identify the disease entity, and sufficient 
observation to establish chronicity at the time.  38 C.F.R. § 
3.303(b) (1998).  If chronicity in service is not 
established, a showing of continuity of symptoms after 
discharge is required to support the claim.  Id.  Service 
connection may be granted for any disease diagnosed after 
discharge, when all of the evidence establishes that the 
disease was incurred in service.  38 C.F.R. § 3.303(d) 
(1998).

A veteran shall be granted service connection for multiple 
sclerosis, although it is not otherwise established as 
incurred in service, if the disease is manifested to a 10 
percent degree within seven years following service.  
38 U.S.C.A. § 1112(a)(4); 38 C.F.R. § 3.307(a)(3).

Having carefully reviewed the evidentiary record, and based 
upon the unique facts of this case, the Board concludes that 
the veteran has presented a well-grounded claim of service 
connection for multiple sclerosis.  The record before us 
includes evidence of a current disability, and medical 
opinion evidence relating the onset of the veteran's multiple 
sclerosis to the seven-year presumption period following 
service.  In this respect, we note that the medical opinion 
evidence presented by the veteran is based, in part, upon his 
reported history of post-service complaints of diplopia, 
chronic fatigue, and muscle spasms in his neck and back, as 
well as his reports of symptomatology in service.  We further 
note that, when a medical opinion relies at least partially 
on the veteran's rendition of his own medical history, the 
Board is not bound to accept the ensuing medical conclusions, 
as they have no greater probative value than the facts 
alleged by the lay veteran.  See LeShore v. Brown, 8 Vet.App. 
406, 409 (1995); Swann v. Brown, 5 Vet.App. 229, 233 (1993).  
However, we also note that a lay person is qualified to 
testify as to the physical manifestations of a disease.   
Savage v. Gober, 10 Vet.App. 488, 495 (1997), see also Harvey 
v. Brown, 6 Vet.App. 390, 393 (1994).

In this instance, the medical opinions of record are based 
upon the veteran's history of suffering from various physical 
problems between 1970 and 1977.  Both opinions are from 
specialists in neurology and, in the case of Dr. Bash, the 
opinion is based upon a complete and thorough review of the 
veteran's medical history.  Furthermore, given the unknown 
etiology of multiple sclerosis, and the nature of its 
symptomatology occurring months or years before the disease 
is recognized, the Board is inclined to defer to the opinions 
of specialists specifically trained in this complex area of 
medicine that encompasses the nervous system and its 
diseases.

We are aware that the RO has not had the opportunity to 
formally consider the medical opinion of Dr. Bash, since it 
was submitted after the completion of the processing of this 
appeal, including certification of the case to the Board.  
Due process ordinarily requires that the RO review evidence 
first, unless the appellant waives such consideration.  
38 C.F.R. § 20.1304(c).  However, in view of our decision 
today, we agree with the assertion of the veteran's 
representative, in his Informal Brief of May 1999, that there 
will be no harm to the veteran in our proceeding without 
remand to the RO to review Dr. Bash's statement.  See Winters 
v. West, 12 Vet.App. 203, 207 (1999) (en banc), wherein the 
Court held that it is not prejudicial error for the Board to 
eschew a useless remand.

We recognize, also, that the veteran's accounts of various 
symptoms which may have been precursors of MS are not well 
documented in the record, but consist, in large part, of his 
recollections and those of his relatives and of a physician 
who has no contemporaneous records to corroborate his report 
from memory.  Nevertheless, the veteran's contentions, 
including his testimony under oath before the hearing 
officer, appear to be consistent and credible.  This is a 
case in which it is very likely impossible to know, for 
certain, whether MS arose during the time periods required by 
law.  We believe, however, that the evidence is sufficient to 
bring the case into relative equipoise.

Therefore, in view of the foregoing, we conclude that the 
evidence of record, although not preponderating in support of 
the claim, at least raises an issue of a reasonable doubt, 
the benefit of which should be resolved in the veteran's 
favor.  Granting the veteran the benefit of the doubt, the 
evidence of record suggests that it is as likely as not that 
the veteran's multiple sclerosis did arise, if not in 
service, then within the seven-year presumption period 
following separation from  service.  Accordingly, service 
connection is warranted under the reasonable doubt doctrine.  
38 U.S.C.A. § 5107(b), 38 C.F.R. §§ 3.102, 3.307.

In implementing this decision, the RO will undertake any 
necessary action to determine the precise current diagnosis 
and degree of disability.


ORDER

Service connection for multiple sclerosis is granted. 




		
	ANDREW J. MULLEN
	Member, Board of Veterans' Appeals