Citation Nr: 0002157 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 97-09 787 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for multiple sclerosis. REPRESENTATION Appellant represented by: The American Legion INTRODUCTION The veteran served on active duty from June 1956 to June 1959. The current appeal arose from a November 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The RO denied entitlement to service connection for multiple sclerosis. In March 1998 the Board of Veterans' Appeals (Board) remanded the case to the RO for further development and adjudicative action. In September 1999 the RO affirmed the denial of entitlement to service connection for multiple sclerosis. In October 1999, in response to the Board's request expressed in its March 1998 remand, the RO considered and denied the claim of entitlement to an increased (compensable) evaluation for the service-connected retrobulbar neuritis with conversion reaction. In correspondence dated in November 1999, the veteran acknowledged receipt of notification of the above denial, did not file a notice of disagreement, and requested that the RO forward his claim to the Board for appellate review. The case has been returned to the Board for further appellate review of the claim of entitlement to service connection for multiple sclerosis. FINDING OF FACT The claim of entitlement to service connection for multiple sclerosis is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSION OF LAW The claim of entitlement to service connection for multiple sclerosis is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background The service medical records contain no evidence or finding of multiple sclerosis. Multiple examinations conducted by VA in December 1970 were negative for any evidence or finding of multiple sclerosis. VA inpatient and outpatient treatment reports dated in 1996 contain no evidence or finding of multiple sclerosis. VA neurological and ophthalmological examinations conducted in October 1996 contain no evidence or finding of multiple sclerosis. VA treatment reports dated in 1997 and 1998 contain no evidence or finding of multiple sclerosis. A May 1999 VA special neurological examination of the veteran concluded in a diagnosis of a history of optic neuritis. The examiner noted there was also a history of neurological symptoms, apparently felt to be secondary to small vessel ischemic disease. The examiner noted he could not state that there was any relation between the veteran's present symptoms and his history of optic neuritis, unless he had a definite diagnosis of multiple sclerosis. The examiner noted he could not render a conclusion about the veteran's retrobulbar neuritis relating to his present neurological symptoms. It was recorded that the claims file had been reviewed. Exhaustive attempts by the RO to obtain additional medical evidence were not successful. Criteria Pursuant to 38 U.S.C.A. § 5107(a), a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The United States Court of Appeals for Veterans Claims (Court) has held that a well grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has also held that although a claim need not be conclusive, the statute provides that it must be accompanied by evidence that justifies a "belief by a fair and impartial individual" that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992). The Court has held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (citing Murphy, at 81). The Court has held that a well grounded claim requires competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the inservice injury or disease and the current disability (medical evidence). Epps v. Brown, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). In determining whether a claim is well grounded, the claimant's evidentiary assertions are presumed true unless inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). Where the determinative issue involves the question of a medical diagnosis or causation, only individuals possessing specialized training and knowledge are competent to render a medical opinion. Espiritu v. Derwinski, 2 Vet. App. 192 (1992). In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1131 (West); 38 C.F.R. § 3.303 (1999). Service connection may be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). If not shown in service, service connection may be granted for multiple sclerosis if disabling to a compensable degree within seven years following service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). This rule does not mean that any manifestations in service will permit service connection. To show 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, as distinguished from merely isolated findings or a diagnosis including the word, "chronic." When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt doctrine in resolving each such issue shall be given to the veteran. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Analysis The Board reiterates the three requirements for a well grounded claim: (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice injury or disease and a current disability. See Caluza, supra. The record, to encompass service as well as postservice medical documentation, is negative for a finding of multiple sclerosis. At no time has the veteran ever been diagnosed with multiple sclerosis. The RO undertook exhaustive efforts to obtain medical documentation from all sources supplied by the veteran but was unsuccessful in this regard. Comprehensive examinations by VA have failed to demonstrate the existence of such a disorder. The only evidence of record alleging that the veteran has multiple sclerosis linked to his period of service is his own assertions. In this instance, the veteran's own opinion and statements of an alleged disability will not suffice to well ground his claim. While a lay person is competent to provide evidence on the occurrence of observable symptoms during and following service, such a lay person is not competent to make a medical diagnosis or render a medical opinion which relates a medical disorder to a specific cause. Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1991). Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the veteran to produce evidence that his claim is well grounded; that is, that his claim is possible. Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Grottveit supra at 92. Because the veteran has failed to meet this burden, the Board finds that his claim of entitlement to service connection for multiple sclerosis must be denied as not well grounded. Pursuant to 38 U.S.C.A. § 5103(a), if VA is placed on notice of the possible existence of information that would render the claim plausible and therefore well grounded, VA has the duty to advise the veteran of the necessity to obtain the information. McKnight v. Gober, 131 F.3d 1483, 1484-1485 (Fed. Cir. 1997); Robinette v. Brown, 8 Vet. App. 69, 80 (1995). In this case, the RO informed the veteran of the evidence he needed to submit to support his claim, thus fulfilling its duty in this instance. The veteran has not indicated the existence of any evidence that has not already been obtained and/or requested that would well ground his claim. 38 U.S.C.A. § 5103(a); McKnight, Epps supra. As the veteran's claim of entitlement to service connection for multiple sclerosis is not well grounded, the doctrine of reasonable doubt may not be applied to his claim. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The veteran's service representative has argued that the VA examiner may not have had access to the entire evidentiary record. As the Board noted earlier, the RO exhausted all efforts to developing the appellant's claim, and subsequently referred the entire evidentiary record to the VA examiner for review in association with the May 1999 examination of the veteran. The veteran's service representative contends that VA has expanded its duty to assist because it is required to fully develop a claim before making a decision on claims that are not well grounded. In support of this contention the representative cites provisions of the VA Adjudication Procedure Manual M21-1. The representative cites to Part III, paragraph 1.03a and Part VI, paragraphs 1.01b and 2.10f in support of the proposition that the RO must fully develop a claim prior to a determination of whether a claim is well grounded. In Morton v. West, 12 Vet. App. 477 (1999), the Court held that the Manual M21-1 provisions pertaining to the development of claims prior to a finding of well groundedness are interpretive, in that they do not relate to whether a benefit will be allowed or denied, nor do they impinge on a benefit or right provided by statute or regulation. The Court found that the M21-1 provisions constituted "administrative directions to the field containing guidance as to the procedures to be used in the adjudication process," and that the policy declarations did not create enforceable rights. The Court also found that interpretive provisions that are contrary to statutes are not entitled to deference, and that in the absence of a well grounded claim VA could not undertake to assist a veteran in developing the facts pertinent to the claim. The Board, however, is required to follow the precedent opinions of the Court. 38 U.S.C.A. § 7269 (1999); Tobler v. Derwinski, 2 Vet. App. 8, 14 (1991). Subsequent to the revisions to the M21-1 manual, in Meyer v. Brown, 9 Vet. App. 425 (1996), the Court held that the Board is not required to remand a claim for additional development, in accordance with 38 C.F.R. § 19.9 (1999), prior to determining that a claim is well grounded. In addition, it was more recently held that under 38 U.S.C.A. § 5107(a), VA has a duty to assist only those appellants who have established well grounded claims. Epps v. Gober, 126 F.3d, 1469 (Fed. Cir. 1997). The Board is not bound by an administrative issuance that is in conflict with binding judicial decisions, and the Court's holdings on the issue of VA's duty to assist in connection with the well grounded claim determination are quite clear. Bernard v. Brown, 4 Vet. App. 384, 394 (1993); 38 C.F.R. § 19.5 (1999). The Board has determined, therefore, that in the absence of a well grounded claim for service connection for multiple sclerosis, VA has no duty to assist the veteran in developing his case on this issue. ORDER The veteran not having submitted a well grounded claim of entitlement to service connection for multiple sclerosis, the appeal is denied. RONALD R. BOSCH Member, Board of Veterans' Appeals