Citation Nr: 9922432 Decision Date: 08/10/99 Archive Date: 08/24/99 DOCKET NO. 98-16 891 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan 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. ATTORNEY FOR THE BOARD C. Trueba-Sessing, Associate Counsel INTRODUCTION The veteran had active service from February 1943 to January 1946. This case comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In an October 1998 substantive appeal, the veteran requested an appeal hearing before a member of the Board at the central office in Washington, D.C. However, in correspondence dated in June 1999, the veteran indicated that he no longer wished to have such a hearing; no further requests for hearings have been made by the veteran. Therefore, pursuant to 38 C.F.R. § 20.704(d), (e) (1998), the veteran's hearing request is considered withdrawn. FINDINGS OF FACT 1. In an August 1996 Board decision, the Board denied a claim for service connection for multiple sclerosis; this decision is final. 2. Evidence associated with the claims folder since the August 1996 Board decision, when considered alone or in conjunction with all of the evidence of record, is so significant that it must be considered in order to fairly decide the merits of the veteran's claim. 3. The veteran's claim of entitlement to service connection for multiple sclerosis is well-grounded. 4. Medical evidence and opinion establishes that the veteran's multiple sclerosis is had initial onset within seven years after the veteran's separation from service. CONCLUSIONS OF LAW 1. The August 1996 Board decision is final. 38 U.S.C.A. § 7104 (West 1991). 2. The evidence received since the August 1996 Board decision is new and material, and the veteran's claim for service connection for multiple sclerosis is reopened. 38 U.S.C.A. §§ 5107, 5108 (West 1991); 38 C.F.R. § 3.07(a)(3) (1998). 3. The veteran's claim of entitlement to service connection for multiple sclerosis is well-grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991). 4. The veteran's multiple sclerosis is presumed to have been incurred during his period of active service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.307 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In an August 1996 Board decision, the Board denied the veteran's claim of entitlement to service connection for multiple sclerosis. At present, as the veteran has attempted to reopen his claim for service connection, his case is once again before the Board for appellate review. However, because the August 1996 Board decision is final, the veteran's claim may only be reopened if new and material evidence is submitted. See 38 U.S.C.A. §§ 5108, 7104(b); 38 C.F.R. § 3.156(a). Consideration of whether new and material evidence has been submitted is required before the merits of the claim can be considered. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). New evidence will be presumed credible solely for the purpose of determining whether the claim has been reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the recent case of Winters v. West, 12 Vet. App. 203 (1999) (en banc), the United States Court of Appeals for Veterans Claims (the Court), citing Elkins v. West, 12 Vet. App. 209 (1999) (en banc), held that the two-step process set out in Manio v. Derwinski, 1 Vet. App. 140, 145 (1991), for reopening claims became a three-step process under the Federal Circuit's holding in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998): the Secretary must first determine whether new and material evidence has been presented under 38 C.F.R. § 3.156(a); second, if new and material evidence has been presented, immediately upon reopening the Secretary must determine whether, based upon all the evidence and presuming its credibility, the claim as reopened is well-grounded pursuant to 38 U.S.C. § 5107(a); and third, if the claim is well grounded, the Secretary may evaluate the merits after ensuring the duty to assist under 38 U.S.C. § 5107(b) has been fulfilled. In this case, since the August 1996 final adjudication, the additional evidence in the file which is related to this issue includes, but is not limited to, various statements from the veteran and from former employees, G.A., F.S., G.S., and R.K. Each of these individuals described their observations of health problems the veteran manifested in 1951 or 1952, and each person explained how they were able to remember what year they observed such symptoms, even though the events occurred more than 40 years ago. Additionally, the record includes letters from Robert C. Ward, III, D.O, dated in August 1997 and May 1998. Dr. Ward provided an opinion that the evidence of record, when reviewed as a whole, established that the veteran had symptoms consistent with multiple sclerosis in 1951 and 1952, followed by remission. Dr. Ward generally indicated that it is not uncommon for multiple sclerosis to go into remission after the original onset of symptoms. An August 1997 letter from J. Paul English, M.D., similarly reveals that it is not uncommon for multiple sclerosis to go into remission after the onset of symptoms of the disease. Dr. English opined that it was likely that the veteran's multiple sclerosis was present for some time prior to the onset of his symptomatology in 1951 and 1952. Dr. English emphasized that the veteran had objective symptoms in 1952, which were was observed by him and by Dr. Westfall, and that these symptoms were of such severity as to require referral to rule out a brain tumor. In addition, the Board notes that Craig N. Bash, M.D., has provided, through the veteran's representative, a June 1999 opinion that the veteran's symptoms in 1952 were "likely" the early manifestations of subsequently diagnosed multiple sclerosis. After a review of the additional evidence submitted subsequent to the August 1996 Board decision, the Board finds that this evidence, when considered alone or in conjunction with all of the evidence of record, is so significant that it must be considered in order to fairly decide the merits of the veteran's claim. As such, this evidence is "new and material" as contemplated by law, and provides a basis to reopen the veteran's claim of service connection for multiple sclerosis. See 38 U.S.C.A. §§ 5108, 7104(b); 38 C.F.R. § 3.156(a). Having reopened the claim, the Board first finds that the veteran's claim of entitlement to service connection for multiple sclerosis is well grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991). The Board will therefore proceed to evaluate the veteran's claim on the merits. In this regard, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) (1998). In addition, service connection may be granted for specific diseases or conditions which are, by law, presumed to have been incurred during service if manifested to a compensable degree within a specified period of time, which is seven years in the case of multiple sclerosis. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1998). A claim may also be well grounded on the basis of 38 C.F.R. § 3.303(b) if the condition is observed during service or during any applicable presumption period, if continuity of symptomatology is demonstrated thereafter, and if competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 498 (1997). After a de novo review of the claims file, the Board finds that the record contains numerous private medical records showing that the veteran currently suffers from multiple sclerosis, first diagnosed in about 1978. The Board finds that the medical evidence submitted after the August 1996 Board decision supports the conclusion that the veteran's multiple sclerosis was manifested in 1951 and 1952, less than seven years after his discharge from service. The Board further finds that the evidence supports a finding that multiple sclerosis was manifested to the required compensable degree, as the symptoms were serious enough to required diagnostic work-up to rule out a brain tumor, although the symptoms thereafter resolved and were absent for many years. As the medical evidence establishes that multiple sclerosis was manifested within the applicable 7-year presumptive period, the veteran has established he is entitled to service connection for multiple sclerosis on a presumptive basis. See 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309. ORDER New and material evidence having been submitted, the claim for service connection for multiple sclerosis is reopened. Entitlement to service connection for multiple sclerosis is granted. TRESA M. SCHLECHT Acting Member, Board of Veterans' Appeals