Citation Nr: 9931944 Decision Date: 11/10/99 Archive Date: 11/19/99 DOCKET NO. 96-30 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for multiple sclerosis. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD S. J. Janec, Associate Counsel INTRODUCTION The veteran had active military service from May 1970 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) from a June 1995 rating decision of the Winston- Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for a back disorder; and a September 1996 rating decision which denied service connection for multiple sclerosis. In May 1997, the Board remanded the case to the RO for further development. Regrettably, as explained below, another Remand is necessary, in part because the veteran has submitted evidence directly to the Board without a waiver of initial RO review. However, since a preliminary review of that evidence reveals that some of the newly submitted material serves to well ground the veteran's claim for service connection for multiple sclerosis, the Board has addressed that aspect of the claim in the decision below. The veteran has not been prejudiced in any way by this action by the Board. The Board notes that, in our May 1997 Remand, the Board referred the issue of entitlement to a total rating based upon individual unemployability due to service-connected disability (TDIU) to the RO for adjudication. However, it does not appear that the RO has adjudicated that issue. In his June 1999 Informal Brief of Appellant in Appealed Case, the veteran's representative, on behalf of the veteran, expressed disagreement with the RO's failure to adjudicate the TDIU issue, and requested that the Board remand the issue to the RO for adjudication. However, the Board points out that a Notice of Disagreement (NOD) must be filed with the body that initially adjudicated the matter (or in this case the body that failed to adjudicate the matter). Therefore, the Board may not accept jurisdiction of the issue at this time, and may not remand it to the RO as requested by the veteran's representative. The matter is referred to the RO for appropriate action. FINDING OF FACT Certain medical evidence indicates that the veteran's multiple sclerosis became manifested within seven years of his discharge from service. CONCLUSION OF LAW The veteran has submitted a well-grounded claim of service connection for multiple sclerosis. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The threshold question to be addressed on the issue of entitlement to service connection for multiple sclerosis is 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 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). See Morton v. West, 12 Vet.App. 477, 480 (1999) (noting that the Federal Circuit, in Epps v. Gober, supra, "rejected the appellant's argument that the Secretary's duty to assist is not conditional upon the submission of a well-grounded claim"). 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 (1999); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992); Montgomery v. Brown, 4 Vet.App. 343 (1993). Under applicable criteria, service connection may be granted for a disability resulting from disease or injury which was incurred in, or aggravated by, active military service or active duty for training. 38 U.S.C.A. §§ 1110, 1131 (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) (1999). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. See also Rose v. West, 11 Vet.App. 169 (1998); Savage v. Gober, 10 Vet.App. 488, 495-98 (1997). Service connection may also 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) (1999). A veteran who has performed active military service shall be granted service connection for multiple sclerosis, although not otherwise established as incurred in service, if the disease is manifested to a 10 percent degree within seven years following the date of separation from such service. 38 U.S.C.A. §§ 1112(a)(1), 1137 (West 1991); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (1999). In this case, the evidence reflects that the veteran served on active duty from May 1970 to November 1971, and that he was diagnosed with multiple sclerosis in September 1980. It would thus appear, based upon the medical evidence of record, that the disease arose well beyond the veteran's active service, and also beyond the statutory presumption period for service connection. Submitted directly to the Board, with the appellant's Informal Brief, was a June 1999 memorandum from Craig N. Bash, M.D., a neuroradiologist and Assistant Professor of Radiology at the Uniformed Services University of Health Sciences. Dr. Bash offered the opinion that symptoms which the veteran experienced in 1975 or 1976, as described in statements by the veteran and his mother, were early manifestations of multiple sclerosis. Therefore, Dr. Bash concluded that the veteran's multiple sclerosis first became manifest within seven years following the date of his separation from service. Since there is medical evidence of the claimed disability, and medical evidence indicating that the disability may have been manifested to a 10 percent degree within seven years of the veteran's discharge from service, i.e., within the presumptive period for that disease, the Board finds that the veteran has submitted a well-grounded claim of service connection for multiple sclerosis. However, the veteran's representative has declined to waive initial consideration of the recently submitted evidence by the RO, and has specifically requested that the Board remand the multiple sclerosis issue for readjudication in light of the new evdence. Because we agree that the RO should have the first opportunity to review this evidence on the merits, we will remand and, in addition, request a current medical examination of the veteran, with the examiner requested to review the pertinent records and provide an opinion as to the onset of the disease. ORDER To the extent that the veteran's claim for service connection for multiple sclerosis is well grounded, thereby giving rise to a duty to assist in its development, the appeal is granted. REMAND Ordinarily, the RO has completed procedural and evidentiary development before an appeal is sent to the Board. That was the case here. However, the veteran's representative has submitted evidence, pertaining to both issues on appeal, directly to the Board, and has asked that it be included in the record on appeal. None of that evidence has been considered by the RO. A veteran who submits evidence to the Board, within 90 days of notice of certification of the appeal to the Board, has a right to have such evidence considered by the RO unless that right is waived. 38 C.F.R. § 20.1304 (1999). The veteran, through his representative, has expressly elected not to waive that right of initial RO consideration, and therefore the case must be returned to the RO for consideration of the new evidence. However, as noted above, the Board has found the claim for service connection for multiple sclerosis to be well grounded, based upon a portion of the recently proffered evidence, and the veteran has not been prejudiced thereby. This conclusion has merely triggered the VA's duty to assist him in the development of his claim pursuant to 38 U.S.C.A. § 5107. In addition, the Board finds that the VA orthopedic examination and opinion that were conducted and provided in February 1998, pursuant to the Board's previous Remand, are insufficient. In particular, we observe that the examiner was directed to review the veteran's claims folder prior to the examination, but the examiner noted that the claims folder was not available for his review before the examination. Based on the veteran's description of his injury in service, the physician concluded that the veteran had a back disorder which undoubtedly began with the injury in service. In an addendum provided two months later, the physician noted that the veteran's file had been thoroughly reviewed and no special additions to the examination were needed. Nevertheless, the examiner did not comment on the private medical reports indicating that the veteran fell approximately 30 feet in November 1989, and sustained multiple rib fractures and a head laceration; or that the veteran was hospitalized in April 1990 for complaints of back pain. During his hospitalization in April 1990, it was noted that the veteran's motor strength had deteriorated to near paraplegia, which was thought to be related to his multiple sclerosis. The United States Court of Appeals for Veterans Claims has definitively held that the Board must remand any case in which there has been a failure to comply with directions in an earlier Board remand. Stegall v. West, 11 Vet.App. 268 (1998). Since the Board has found that the remand has not been fully complied with, the case must be returned to the RO for further development. With regard to the issue of entitlement to service connection for a back disorder, the Board notes that the veteran's representative, in his Informal Brief, requested that the Board grant service connection for lumbosacral strain based on the February 1998 VA examination report, and remand the issue of entitlement to service connection for degenerative arthritis of the lumbar spine (despite the fact that the X-rays were negative for arthritis). However, the Board finds that bifurcating the issue at this point would complicate the matter unnecessarily. Furthermore, as noted above, we have concluded that the examination and opinion which were provided in February 1998 are inadequate. Accordingly, the Board declines to separate the various aspects of the veteran's back disorder at this time. Unfortunately, our appellate review has been frustrated, because the report of the February 1998 VA examination is insufficient and additional evidence has been associated with the file. We appreciate that the RO made every effort to adequately develop the record on appeal, and note that this Remand is not necessitated upon a deficiency on their part. However, for the reasons outlined above, further development is necessary before the Board may proceed with its appellate review. In view of the foregoing, the case is REMANDED to the RO for the following development: 1. The RO should obtain copies of any recent records of VA or non-VA hospitalization or treatment for the claimed disabilities that have not been associated with the veteran's claims file. 2. The veteran should be scheduled for a VA neurological examination. Before evaluating the veteran, the examiner should review the claims folder, including this Remand, the June 1999 medical statement submitted on behalf of the veteran's claim, and particularly the veteran's service medical records and post-service medical records. After the examination and a review of the record, the examiner should provide an opinion as to the likelihood that, and the degree to which, the currently diagnosed multiple sclerosis became manifest within seven years of the veteran's discharge from service. Recognizing the difficulty of ascertaining the onset of this disease, the Board requests that the examiner provide a complete rationale, with reference to items of evidence in the record, for any conclusions reached. 3. The veteran should be scheduled for a VA orthopedic examination. Before evaluating the veteran, the examiner should review the claims folder, including this Remand, and particularly the veteran's service medical records and post- service medical records. After the examination and a review of the record, the examiner should provide written responses addressing, to the extent feasible, the following questions: (a) What is/are the proper diagnosis(es) for the veteran's back disorder? Please specify all clinical findings and relevant diagnoses for the record. (b) What is the likelihood that the currently diagnosed disorder(s) is/are related to an injury in service or otherwise related to the veteran's military service in any way; or, is/are related to an intervening cause, such as a post- service injury and/or multiple sclerosis? 4. When the above development has been completed, and all evidence obtained has been associated with the file, the claims for service connection for a back disorder and multiple sclerosis should be readjudicated by the RO. If either decision remains adverse to the veteran, he and his representative should be furnished with a Supplemental Statement of the Case and afforded a reasonable opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified; however, he is advised that he has the right to submit additional evidence and argument on the matter that has been remanded to the regional office. Kutscherousky v. West, 12 Vet.App. 369 (1999). 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 United States Court of Appeals for Veterans Claims 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. 1999) (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. ANDREW J. MULLEN Member, Board of Veterans' Appeals