Citation Nr: 1600627 Decision Date: 01/07/16 Archive Date: 01/21/16 DOCKET NO. 10-47 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for multiple sclerosis (MS). REPRESENTATION Appellant represented by: Sean Kendall, Attorney ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The appellant had active service from June 8, 1970, to July 30, 1970. This matter came before the Board of Veterans' Appeals (Board) on appeal from decision of November 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The appellant's claim for entitlement to service connection for MS was reopened and remanded by an August 2011 Board decision. The claim was then remanded for further development in March 2014. FINDING OF FACT The weight of the evidence is against a finding that a disease, claimed as MS, either manifested during the appellant's active military service, or was caused by his active military service. CONCLUSION OF LAW The criteria for service connection for MS have not been shown. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided and neither the appellant, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. As for the duty to assist, service treatment records and pertinent post-service medical records have been obtained, to include medical records from the Social Security Administration (SSA), to the extent available. Additionally, the appellant was offered the opportunity to testify at a hearing before the Board, but he declined. The appellant was also provided with several VA examinations/medical opinions (the reports of which have been associated with the claims file). It is noted that the Board previously remanded the appellant's claim in order to obtain additional rationale to support an earlier medical opinion. This additional opinion was obtained in July 2014 and contained more than 30 pages of references both to the appellant's specific medical history and to the known medical literature regarding MS. As such, the Board finds the most recent opinion to be fully adequate for rating purposes, as the examiner had a full and accurate knowledge of the appellant's disability and contentions, and grounded his opinion in the medical literature and evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, neither the appellant nor his representative has objected to the adequacy of the most recent opinion. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection The appellant claims that he has MS, which he believes first originated in service, and that the disease, while not diagnosed for more nearly two decades after service, was first manifested by headaches and decreased visual acuity during service. To that end, the appellant's service treatment records contain a notation of "headache and eye" was recorded in July 1970, after the appellant was hit with a window blind, and the appellant did check "Yes" to severe headaches and eye trouble on separation. The Court of Appeals for Veterans Claims (Court) held that, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See generally Hickson v. West, 12 Vet. App. 247, 253 (1999). If a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. MS may be presumptively service connected if it becomes manifest to a degree of 10 percent or more within seven years of qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2015). However, the appellant in this appeal had less than 90 days of active service, having served from June 8, 1970, to July 30, 1970, and the disease at issue is born neither of prisoner of war status, nor from exposure to herbicide agents. Therefore, this presumption is inapplicable. See 38 C.F.R. §§ 3.307(a)(1). Turning to the evidence of record, the appellant's service treatment records are silent for documentation of MS. In fact, the first diagnosis (by history) of MS within the record occurred in 1997 (SSA records note that the first diagnosis was in 1996), nearly three decades following the appellant's separation from his brief stint in the military. The Board acknowledges the fact that there are a number of references to MS in the appellant's medical records. However, having carefully studied the evidence of record in this case, it is clear that the most probative and comprehensive evidence does not support the diagnosis of MS. Several etiological opinions are of record. Even accepting that the appellant does have MS, there is only one medical opinion that suggests that the appellant's MS began during service (although the opinion largely seeks to show the onset within seven years of separation from service, as the medical professional mistakenly applies a statutory presumption which is inapplicable to this case), and that opinion makes such evidentiary leaps (as will be discussed below) that it is not found to be persuasive. In his October 2000 opinion, Dr. Bash stated that he supported the appellant's MS diagnosis. However, he disagreed that the appellant's headaches, for which he is currently service connected, were caused by an injury to the forehead in service. Instead, and in contrast to a plethora of statements submitted by the appellant's other providers over the course of multiple appeals (which led to service connection for that disability), this provider indicated that in-service headaches, along with waxing and waning visual acuity, were actually early manifestations of MS which was not diagnosed until the late 1990s. It was further noted that these symptoms were present during the seven-year presumptive period for MS, which the Board explained was inapplicable to this case. The provider noted several instances of refractive error, a congenital disorder which is not considered a disability by VA, between the years of 1970 and 1999. The range of refractive error over this period was from 20/30 (right) and 20/20 (left) to 20/60 (right) and 20/70 (left). This list was then followed by a single notation of "chronic progressive MS" by a "VA doctor." Based on this evidence, the provider found that it was "clear" from the medical record that the appellant has had waxing and waning visual acuity since service consistent with optic neuritis. While the record is completely silent for such a diagnosis, Dr. Bash nonetheless found that persistent headaches, together with episodic changes in visual acuity, were often seen as the first manifestations of MS. He explained that optic neuritis, specifically, was the first manifestation "in about 15% of patient's [sic] with multiple sclerosis and occurs at some time in 50% of all patients with multiple sclerosis." Again, the Board notes that the record is silent for any diagnosis of optic neuritis. In July 2009, a VA examiner addressed this opinion, noting that the private medical professional's review of the record was abbreviated and listed many visual acuity changes that occurred after the appellant was discharged from service. The examiner observed that the Merck Manual stated that optic neuritis was an inflammation of the optic nerve, with symptoms that were usually unilateral with eye pain and partial or complete vision loss. Optic neuritis is often the presenting manifestation of MS, but other causes include the following infectious diseases (e.g. viral encephalitis [particularly in children] sinusitis meningitis, TB, syphilis, HIV, tumor metastasis to the optic nerve, Chemicals and drugs (e.g. lead, methanol, quinine, arsenic, antibiotics). However, often the cause remains obscure despite thorough evaluation. The major symptom is vision loss frequently maximal within 1 or 2 days and varying from a small central or paracentral scotoma to complete Blindness. The examiner noted that most patients experienced mild eye pain which often felt worse with eye movement. She noted that there was no indication that the appellant complained of pain or scotoma, symptoms which would have led to a dilated eye exam that would have demonstrated optic neuritis. The examiner opined that one cannot assume that the veteran had optic neuritis without evidence on dilated eye exam, and noted that eye pain was certainly present with migraine headaches and other conditions. This opinion is well-reasoned and thoroughly undermines Dr. Bash's conclusion that the appellant had optic neuritis, a conclusion which has no other support in the record. Simply put, Dr. Bash made a good effort to connect the dots, but his rationale requires great evidentiary leaps to be made. That is, one must assume that the medical professionals who were treating the appellant for years were incorrect (as the medical evidence of record links headaches to the appellant's injury in service when he was struck in the head). Dr. Bash would then have you believe that the appellant's symptoms were clear evidence of optic neuritis, which was not diagnosed at any time. Moreover, as the VA examiner explained, other symptoms beyond minor changes in visual acuity would likely be seen if optic neuritis were present. Dr. Bash's opinion does not account for the absence of such symptomatology. As such, the Board finds the 2009 VA examiner's opinion to be significantly more probative than Dr. Bash's opinion. The Board did remand the appellant's claim on several occasions after this July 2009 opinion, but the reason for the remand was to seek clarification as to why it was believed that the appellant did not actually have MS. That is, the remands did not find issue with the refutation of the private medical opinion. Thus, while the Board sought additional medical opinions, the Court has explained that even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). This is particularly true here, as an addendum opinion was needed to clarify the examiner's position as to whether the appellant had MS. However, there was no suggestion that the VA examiner's refuting of the private medical opinion's reliance on optic neuritis was anything but spot on. The Board acknowledges that there are a number of medical records in the claims file which list MS, or suggest that the appellant has MS. However, these records appear simply be recording the appellant's reported medical history, rather than describing clinical testing to actually show MS. The Board did determine in August 2011 and March 2014 that the opinions preferred in July 2009 and October 2009 were inadequate to because they did not fully explain why it was felt that the appellant did not have MS, particularly in light of the notations of MS in the medical records. As such, a VA addendum opinion was obtained in July 2014. Here, the VA examiner reviewed the appellant's claims file and the medical literature concerning MS. Ultimately, the examiner explained that the appellant's symptomatology simply did not support a diagnosis of MS, noting that none of the mentions of MS in the records were actually based on, or confirmed by, neurological testing. The examiner observed that every MS diagnosis of record, including the October 2000 private opinion, lacked supporting neurological workups to support such a conclusion. He added that each such diagnosis within the prior two decades was noted, and in each instance, those diagnoses were made seemingly without any contemporaneous diagnostic testing. The examiner also noted that some MS diagnoses of record were simply not definitive. In summary, the examiner found that the appellant did not meet the current medical criteria for a MS diagnosis. The examiner lamented the lack of "diagnostic work-ups" time and time again. The examiner specifically addressed three of the medical professionals whose statements had attributed MS to the appellant. He noted that Dr. Urich did not explain what kind of diagnostic work-ups were done to justify the MS diagnosis; noted that Dr. Vettichira appeared to treat the appellant for pain and physical function impairment and did not initial any neurological diagnostic work-ups for MS diagnosis to justify MS diagnosis; and Dr. Kabaria, a pain and anesthesiology specialist, but not a neurologist, also failed to do any diagnostic work-ups to justify MS diagnosis. Conversely, multiple private neurologists, including Dr. Andriola and Dr. Hulley, had not made any definitive MS diagnosis, and two VA neurologists concluded that a MS diagnosis was highly unlikely for the appellant based on all available medical work-ups. It is noted that the appellant submitted a statement from Dr. Blackstone in October 2014 stating that he was having an exacerbation of his MS, but again this opinion appears to assume the diagnosis of MS based on reported history and not on actual clinical work-ups, and therefore it lacks probative value for the same reasons that the statements from Dr. Vettichira and Dr. Kabaria did, as explained by the VA examiner in 2014. The Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Here, the Board concedes that MS has been treated by a myriad of providers, VA and private, over a period spanning nearly 20 years. Yet, there is little record of any clinical testing to support the diagnosis, and the medical professionals treating the appellant appear to simply assume the presence of MS. When each "diagnosis" is examined in isolation, there appears to be little more than reported history being used to support the conclusion that the appellant has MS. For example, Dr. Kabaria stated that the appellant "has been diagnosed with Multiple Sclerosis" in a March 2011 letter, but does not indicate that he performed any actual workup. When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). Here, a number of medical records and opinions are contained in the appellant's claims file, all of which were provided by medical professionals. As such, each record/opinion is considered to constitute both competent evidence, which is deemed to be probative. However, the Board must determine what evidence is the most probative. In this case, the most recent VA examiner explained specifically why he did not believe that a diagnosis of MS was warranted, and he pointed out why the notations of MS having been diagnosed should not be taken as evidence of MS. Moreover, the examiner's opinions were grounded in numerous citations to medical literature and to the appellant's medical history. Conversely, the other statements that the appellant had MS appear to largely be a result of the appellant having been treated for MS, but do not show clinical work-ups or testing that would support such a diagnosis. It is also noted that the appellant has been noted to over report symptomatology to medical professionals in the past in conjunction with psychiatric assessments, and the April 2006 VA examiner noted that there was a significant discrepancy in the history given by the appellant. Given the thoroughness of the 2014 medical opinion, the Board finds that it should be afforded the greatest weight. When this is done, the evidence of record simply is against the conclusion that the appellant has had MS at any time during the course of his appeal. Therefore, service connection is not warranted for MS. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). While the weight of the evidence is clearly against a finding that the appellant has MS, even if it were assumed that the appellant had MS, service connection would still not be warranted as the evidence of record is against a finding that such a disease either began during or was otherwise caused by the appellant's military service. The only medical opinion of record to support an etiological link between the appellant's period of service and his subsequent diagnosis of MS was the opinion authored in October 2000 by Dr. Bash. This opinion is based on two separate medical theories. First, the provider determined that the appellant's wavering refractive error must be indicative of optic neuritis, which is often associated with MS. Here, the record is silent for any such diagnosis. In fact, a VA outpatient report from September 30, 2003, specifically indicated that there was no known history of optic neuritis. Despite Dr. Bash's attempts to circumvent this essential fact, and following several VA eye examinations, there is no indication that the appellant has ever been diagnosed with optic neuritis. An April 2006 VA ophthalmologic examination indicated that the appellant had a history of glaucoma, bilaterally, a current diagnosis of cataracts, bilaterally (also called a nuclear sclerotic change), brow ptosis (which was slightly responsible for visual field defects and linked to the appellant's in-service injury, also service connected), bilaterally, and refractive error. As such, the first conclusion of the October 2000 opinion lacks support within the evidentiary record. The second supposition of the October 2000 report is that the appellant's in-service headache reports were an early manifestation of MS, as opposed to being hit over the head by a venetian blind which caused the appellant to lose consciousness and suffer a laceration of the forehead. Again, the Board notes that the appellant is now service connected for headaches and ptosis due wholly to opinions provided by multiple examiners, over a very long period of time, relating headache complaints to this one, specific incident. Opinion after opinion, many of which were private opinions submitted by the appellant in support of his headache claim, attributed headaches to this incident. Looking to the service records themselves, the appellant was injured on July 7, 1970, reported with a laceration on July 8, 1970, and complained of a headache and eye condition on July 9, 1970. However, without regard for these consecutive, in-service reports, or to the myriad of other providers who have attributed the appellant's headaches to this incident, Dr. Bash found that a single report of a headache following a violent attack was clearly an early manifestation of MS. The Board notes that Dr. Bash has offered no rationale whatsoever to support this supposition. Further, he fails to address why the several opinions of record, which link the appellant's headaches to this incident, are invalid. Instead, he simply concludes that headaches were an early indication of MS. When viewed contemporaneously with the lack of evidence to support a diagnosis of optic neuritis, the Board finds that this opinion lacks any probative value. While MS might not be the appropriate diagnosis for the appellant's condition, it is clear that he has significant health problems. However, as noted, the appellant was in service for less than two months, and the weight of the evidence is against a finding that a chronic disability other than MS began during such service, beyond the migraine headaches, scar, and ptosis for which he is already service connected. As noted, the appellant's period of service is inadequate to qualify for a seven-year presumption for MS, so the October 2000 provider's statements as to MS manifestations during this period are also inapplicable in this instance. Instead, this case hinges on whether MS, or another chronic disability, was first manifest in approximately seven weeks of active duty service from June 8, 1970, to July 30, 1970. The Board finds that the record does not support such a conclusion. In a lay statement dated May 20, 2011, the appellant's brother indicated that the appellant returned home after being injured in service. Specifically, the appellant relayed that he suffered a head injury, and that shortly after he came home, his brother noticed that the appellant had problems with his legs (numb and weak). The brother postulated that the appellant's subsequent MS diagnosis was related to this injury. Regarding the assertions from the appellant's brother, and from the appellant's representative, that manifestations of MS existed upon separation from active service, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. Laypersons are considered competent to provide a medical diagnosis only if (1) the condition is simple to identify (such as a broken leg), (2) he or she is reporting a contemporaneous medical diagnosis, or (3) his or her description of symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the appellant's brother's account of leg weakness after separation is certainly competent. However, the bother's theory (that MS is related to an in-service trauma) is not supported by any medical evidence of record, to include the October 2000 provider, and the appellant's brother lacks the medical training to make such a link or to diagnosis MS. Therefore, his statement is insufficient to either diagnosis MS or to link it to the appellant's military service. The VA examiner was aware of the brother's assertions, but continued to maintain that a diagnosis of MS was not warranted. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance of the evidence is against the appellant's claim, and as such entitlement to service connection for MS is denied. ORDER Service connection for multiple sclerosis is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs