BVA9501331 DOCKET NO. 90-50 669 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania 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: Keith D. Snyder, Attorney ATTORNEY FOR THE BOARD Mark J. Swiatek, Counsel INTRODUCTION The appellant had a period of active duty for training from August 1962 to February 1963. This matter arose from a June 1990 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In an April 23, 1991, decision, the Board of Veterans' Appeals (Board) denied service connection for multiple sclerosis. The United States Court of Veterans Appeals (Court) vacated the April 23, 1991, decision and remanded the case to the Board for readjudication in accordance with a May 22, 1992, Motion for Remand and to Stay Further Proceedings filed by the Secretary of Veterans Affairs (Secretary). [citation redacted]. In July 1993, the Board remanded the case to the RO for further development. InJune 1994 it was again remanded by letter for procedural reasons.In October 1994, the case was returned to the Board for further appellate consideration. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that the initial manifestations of multiple sclerosis occurred during his period of active duty for training, warranting service connection for the disease, symptoms of which have persisted ever since. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the appellant's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence added to the record since the Board's October 1985 decision denying service connection for multiple sclerosis is new and material and, thus, the claim is reopened. FINDINGS OF FACT 1. Entitlement to service connection for multiple sclerosis was denied by the Board in October 1985. 2. Evidence added to the record since the October 1985 Board decision is not solely cumulative or redundant, is relevant and probative, and, when viewed in conjunction with the evidence previously of record, raises a reasonable possibility of an outcome different from that reached by the Board in October 1985. CONCLUSION OF LAW Evidence received since the October 1985 Board decision denying entitlement to service connection for multiple sclerosis is new and material, and the claim for this benefit is reopened. 38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R. § 3.156(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant's claim for service connection for multiple sclerosis was denied by the RO in August 1980 and, following notification of the determination in September 1980, the appellant did not perfect an appeal. Nevertheless, in October 1985, the claim was reviewed by the Board de novo and denied. The October 1985 Board decision therefore became final based on the evidence then of record. 38 U.S.C.A. §§ 7103, 7104 (West 1991). New and material evidence is required to reopen the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Manio v. Derwinski, 1 Vet.App. 140 (1991). In determining if new and material evidence has been submitted, the Board is required to review all of the evidence submitted by a claimant since the last final denial on the merits in order to determine whether a claim must be reopened and readjudicated on a de novo basis. Glynn v. Brown, 6 Vet.App. 523 (1994). As noted above, the RO considered this claim in August 1980. There were no pertinent service medical records. In an October 1976 report, Albert D. Wagman, M.D., reported a clinical history of relevant symptoms for the appellant for some 14 years. He stressed that the possibility of a demyelinating disease must be considered. The report of a February 1980 admission to Abington Memorial Hospital included a diagnosis of myelopathy of undermined etiology. In a March 1980 report, B. Franklin Diamond, M.D., mentioned that improvement had been maintained in the appellant's demyelinating disease since hospital discharge. The record also included an August 1980 affidavit from the appellant's father who recalled the appellant's complaints of back pain and leg immobility during his military service. Evidence received since the August 1980 rating decision included additional private examination and medical treatment reports. There were June 1984 statements from Dr. Diamond, Theodore R. Cohen, D.O., and William B. Caskey, M.D. These took visual problems for the appellant as far back as 1966. In a July 1984 statement, G. Anthony Mascara, M.D., recalled his treatment of the appellant in June 1963 for blurred vision and numbness of the left leg. In February 1985, statements were received from several service comrades, which were supportive of the appellant. In addition, the appellant testified at March and August 1985 personal hearings. Dr. Diamond was among the March 1985 witnesses. In October 1985, the Board found that multiple sclerosis was not diagnosed or otherwise clinically demonstrated by recognized medical findings during the appellant's period of active duty for training. The evidence received since the Board's October 1985 decision consists of a private medical opinion and the appellant's affidavit. In February 1990, Murray B. Bornstein, M.D., Professor of Neurology, reported that based on the appellant's history and neurological evaluations since 1963, he was quite certain that the appellant's symptoms of blurred vision and numbness of his legs in 1963 were manifestations of the neurological illness now diagnosed as multiple sclerosis. The appellant submitted an affidavit in April 1994 in lieu of testifying at a hearing, in which he stated, in essence, that he did not receive any medical treatment during his active duty for training and that his recollection of the onset of symptoms had become more precise after discussion with a service comrade. This is presumed to be credible. Justus v. Principi, 3 Vet.App. 510, 513 (1992). The Board concludes that the evidence received since the October 1985 Board decision raises the reasonable possibility of an outcome different from that reached by the Board in 1985. Dr. Bornstein's opinion associates multiple sclerosis with symptoms observed by a physician approximately four months after service. In October 1985, the Board concluded that there was no contemporaneous medical documentation of pertinent symptomatology for several years after service. The claim for service connection for multiple sclerosis must, therefore, be reopened. ORDER New and material evidence having been submitted, the request to reopen the claim of entitlement to service connection for multiple sclerosis is granted. REMAND In view of our decision reopening the appellant's claim for service connection for multiple sclerosis, the RO must readjudicate the claim without regard to the finality of the October 1985 Board decision, based on all evidence, both new and old. In the July 1993 remand, the RO was directed to determine if additional service medical records were available from the appellant's period of active duty for training and to schedule the appellant for a Travel Board hearing. In August and September 1993 communications from the National Personnel Records Center, the RO was advised that no additional service medical records had been located. The veteran canceled a hearing scheduled during February 1994 and submitted an affidavit in lieu of testimony. The Board finds that the RO accomplished the development to the extent possible. The Court directed the Board to readjudicate the claim in accordance with the Secretary's motion. In that motion, the Secretary observed that an explicit credibility determination was of significance in this case, since the appellant could not take advantage of the seven year presumption for service connection for multiple sclerosis and there were no symptoms documented in the service medical records (Secretary's motion at 14-18). The Board observes that Dr. Bornstein did not detail the record he was provided to review. However, he was aware of Dr. Mascara reporting June 1963 treatment of the appellant for blurred vision and numbness of the left leg. The medical records upon which that statement was based have never been obtained. Further, in August 1980, a statement was received from the secretary of Jerome M. Cotler, M.D., regarding the appellant's treatment in 1964. An address was provided from which the medical records could be requested. It does not appear that a request was made for the records. The appellant has submitted administrative correspondence dated from February 1964 to January 1965 from his National Guard unit, relating to his retention. The correspondence confirms a March 1964 examination and a November 1964 request for reexamination. The November 1964 communication indicates that statements from physicians were of record. At the August 1985 hearing, the appellant testified as to problems with the left lower extremity at the time. These records are crucial to an informed decision. They were recorded soon after the appellant's active duty for training and would be of significant probative value in the credibility determination crucial to the appeal. Where the record before the Board is inadequate to render a fully informed decision on an issue of service connection, a remand to the RO is required in order to fulfill the statutory duty to assist. Ascherl v. Brown, 4 Vet.App. 371 (1993). Accordingly, the Board concludes that further development, as specified below, is necessary. The case is, therefore, REMANDED to the RO for the following actions: 1. The RO should contact the National Personnel Records Center and the appellant's former National Guard unit to determine whether any additional service medical records pertaining to the appellant are on file; if so, they should be obtained and associated with the claims folder. Of particular importance are the records relating to a medical examination at Fort Dix, New Jersey, reported to have been performed on March 16, 1964, at the request of Headquarters, 1st Battalion, 50th Armor, New Jersey National Guard, Vineland, New Jersey 08360, as well as any record of reexamination of the appellant requested by the appellant's unit in November 1964. 2. The RO should request that the appellant identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for multiple sclerosis since service. With any required authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran which have not been previously secured. In any case, these should include all available records for treatment by Jerome M. Cotler, M.D., Intercounty Orthopaedic Association, Manheim Avenue, Bridgeton, New Jersey 08302; and from G. Anthony Mascara, M.D., 44 Eastwood Drive, Vineland, New Jersey 08360. 3. Thereafter, the claims file should be referred to a VA neurologist, board certified if available, for review. The examiner should provide his opinion, with complete rationale, as to when the initial manifestations of mutiple sclerosis appeared, and whether he feels it is as likely as not that the disease was present during the appellant's period of training. 4. After undertaking any additional development deemed appropriate, and giving the appellant full opportunity to supplement the record, the RO should then readjudicate the issue of service connection for multiple sclerosis on a de novo basis. If the benefit sought on appeal is not granted to the appellant's satisfaction, a Supplemental Statement of the Case addressing the issue in appellate status and containing all relevant laws and regulations pertaining to direct service connection should be prepared and furnished to the appellant and his representative. They should be provided an opportunity to respond. Thereafter, in accordance with the proper appellate procedures, the case should be returned to the Board for further appellate review, if otherwise in order. In taking this action, the Board implies no conclusion, either legal or factual, as to any final outcome warranted. No action is required of the appellant until he is otherwise notified by the RO. J. J. SCHULE Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, (Continued Next Page) provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).