Citation Nr: 0006806 Decision Date: 03/14/00 Archive Date: 03/17/00 DOCKET NO. 96-39 062 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for multiple sclerosis. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD P.B. Werdal, Counsel INTRODUCTION The veteran served on active duty from October 1965 to October 1969. Service connection for an adjustment disorder with depression was denied by the regional office in an October 22, 1987, rating decision. That decision was not appealed. On VA Form 21-4138 dated October 22, 1993, the veteran referred to problems with anxiety and anger associated with his service in Vietnam. He also asked to reopen his claim for service connection for multiple sclerosis. Accompanying the statements was a request from his representative requesting development of the claims. The RO, finding the claims not well grounded, denied the claims of service connection for a nervous condition and multiple sclerosis in a rating decision of April 13, 1994. The veteran was notified of the adverse decision on May 25, 1994. His statement dated November 17, 1994, and received November 22, 1994, only addressed the matter of multiple sclerosis and made no reference to a psychiatric disorder. It appears that this statement was accepted as an application to reopen the claim of service connection for multiple sclerosis. Additional medical records from private and VA sources were received. After consideration of this additional evidence, the RO determined on September 21, 1995, that new and material evidence had not been submitted to reopen the claim of service connection for multiple sclerosis. His notice of disagreement was received on August 20, 1996. A statement of the case was issued August 20, 1996. That document stated the issue as whether the claims of service connection for multiple sclerosis and a nervous condition were well grounded. Reference was made to the veteran's correspondence of October 1993. A supplemental statement of the case was mailed to the veteran on August 23, 1996. The issue was stated to be service connection for multiple sclerosis; it was denied because it was not well grounded. A VA Form 9, dated August 26, 1996, was received August 28, 1996. It was signed by the veteran but contained no other information except a request for a Board of Veterans' Appeals hearing. That hearing was held on January 30, 1998. An additional supplemental statement of the case was sent to the veteran in March 1999 addressing only the issue of service connection for multiple sclerosis. A rating decision of December 7, 1999, granted entitlement to special monthly pension. On that date, another supplemental statement of the case was prepared in which the issues were stated as entitlement to service connection for multiple sclerosis and whether new and material evidence had been received to reopen the claim of service connection for a nervous condition. Because the April 1994 denial of service connection for multiple sclerosis was not appealed, it became final. Therefore, the issue on appeal is whether new and material evidence has been received to reopen the claim of service connection for multiple sclerosis. The matter of service connection for a psychiatric disorder will be addressed in the remand portion of this decision. FINDINGS OF FACT Competent medical evidence that the veteran's multiple sclerosis was incurred or aggravated during service, or that it was present to a compensable degree within seven years following release from active duty, has not been presented. CONCLUSIONS OF LAW A well-grounded claim of entitlement to service connection for multiple sclerosis has not been presented. 38 U.S.C.A. §§ 1110, 1112(a)(4), 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.307(a)(3) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Background The veteran has multiple sclerosis, which was first diagnosed in 1992. He served on active duty from October 1965 to October 1969. He asserts that although multiple sclerosis was not diagnosed until 1992, he had it during service, and points out that although his service medical records contain no reference to complaints of or treatment for multiple sclerosis, during service he did suffer symptoms of multiple sclerosis. In April 1992 the veteran filed a claim seeking to establish entitlement to service connection for multiple sclerosis. His service medical records are completely silent regarding any complaints of, treatment for, or diagnosis of multiple sclerosis, numbness of the right side, or a psychiatric disability. VA treatment records reflect that he was first diagnosed with multiple sclerosis in April 1992. A letter from Dr. N, a VA staff neurologist, reported that the clinical impression of multiple sclerosis was confirmed by a magnetic resonance imaging conducted in April 1992. He further reported that as the result of multiple sclerosis, the veteran has weakness in the right leg and arm, neurogenic bladder and easy fatigue. His condition had reportedly progressed during the two previous years to the point where he had to use a wheelchair, and complained of numbness and a heavy feeling in the right arm distal to the elbow. The right hand grip became poor, and since December 1991 he had been treated by the urology department for difficulty voiding. He concluded that the veteran's multiple sclerosis appeared to be a progressive form of the disease, and as a result he would probably not be able to return to any gainful employment. In a July 1993 rating decision, the RO found the veteran was entitled to special monthly pension on account of his need for regular aid and attendance; service connection was denied for multiple sclerosis. There is no indication the veteran was informed of the decision to the extent it denied his April 1992 claim of service connection for multiple sclerosis, however. In October 1993 the veteran again indicated a desire to establish service connection for multiple sclerosis and for a psychiatric disability. In support of those claims he indicated he had symptoms of multiple sclerosis in 1975-1976, and that after service he is especially sensitive to sounds that remind him of Vietnam, does not like to discuss Vietnam because it makes him upset and angry, has lost his feeling of intimacy, has sleep disturbances because of anxiety attacks and is very nervous much of the time. Medical evidence in the claims folder includes a report prepared incident with a 1987 hospitalization for, inter alia, nervous problems of several years duration. The relevant diagnosis was adjustment disorder with depression. In April 1994, the RO denied the claims, concluding they were not well grounded because neither disability was complained of or noted in service, or within the presumptive period following service. In November 1994, he indicated he was treated from 1969 to 1975 at the VA medical facility in Providence, Rhode Island, for symptoms of multiple sclerosis, and then at the VA medical facility in Temple, Texas. Medical records were requested from those facilities. The VA facility in Providence reported it had no records available regarding the veteran. Records obtained from the Temple facility dating as far back as 1986 reflect that, indeed, the veteran was seen there with complaints of right-sided weakness and bladder problems. In October 1991 he was referred to the neurology department with a provisional diagnosis of "possible m[ultiple]s[clerosis]." When examined by Dr. N., a neurologist, in March 1992 the impressions were "suggest right carpal tunnel, and unexplained weakness right leg." A magnetic resonance imaging was ordered, and on April 17, 1992, Dr. N. diagnosed the veteran as having multiple sclerosis. Also submitted on the veteran's behalf in November 1994 was a lay statement from RJG in which he reported the veteran was very nervous and showed signs of depression following service, when the veteran lived in Rhode Island. Private medical records received in March 1995 from an eye doctor dated from 1976 to 1983 reflect various eye complaints, including double vision in 1978. Other private medical records from physicians in Rhode Island and Massachusetts dated in 1973 discuss vision problems, and a statement dated in 1995 does the same, but none of them refers to multiple sclerosis as the possible cause of those vision problems. An October 1992 VA compensation and pension examination conducted by a psychologist reflects the veteran reported treatment for depression for twelve days in 1987, but no further treatment for that condition. Upon examination the examiner concluded the veteran's social and occupational functioning did not appear impaired by emotional problems, and the examiner indicated no psychiatric diagnoses were warranted. VA treatment records received in April 1995, dated in 1994 and 1995, reflect the veteran attended the mental health clinic and participated in a multiple sclerosis group; an April 1994 report contains a diagnosis of adjustment disorder with depressive neurosis. In September 1995 the RO determined that the veteran had not submitted new and material evidence regarding his claim of entitlement to service connection for multiple sclerosis, apparently after concluding that the materials submitted in November 1994 were not a Notice of Disagreement regarding the May 1994 notice of denial but were instead an attempt to reopen a previously denied claim. The veteran indicated his disagreement with that decision and requested a hearing. At the hearing before a hearing officer in August 1996 the veteran testified that he first noticed numbness in his right hand in service just before he got out of service, reporting that he could hit it against something and not feel it. He indicated he had received no treatment for it in service. After service, in 1973 or 1974, the veteran started limping. He went to a doctor once in Rhode Island, as he was living there then, who gave him temporary relief. After that he experienced problems with his eyes, which were diagnosed by physicians in Boston as a problem with the retina. He added that he sought treatment for the limping and the numbness at Temple after moving there in approximately 1975, and after testing was conducted at Temple was told he had a pinched nerve in his neck. He and his spouse testified that they later learned that all the problems he suffered (prostatitis, eye problems, numbness, hand and feet) "go with" multiple sclerosis. A hearing was held before the undersigned in January 1998. The veteran testified that during service he had problems with numbness in his right arm. He also testified that in service he complained of numbness of the right hand that interfered with his ability to hold things; he was told that he had a pinched nerve. He stated that in 1973 he developed a limp, and was treated on one occasion for it by a physician in Rhode Island. The veteran reported he was discharged in 1969, but was not "finally" discharged until 1971, and he developed the limp two years later. He started having blurred vision in 1972, which lasted approximately six to eight months, and that in 1973 or 1974 the physicians who treated him didn't tell him what was wrong, but that a physician in Texas did tell him what was wrong with his eyes but the veteran cannot remember what it was, other than that it was a disease with a long name. Regarding urinary problems, the veteran asserted they began in 1973, and he received treatment for them at a VA facility for a diagnosis of prostatitis. He repeated that he began having problems on the right side of his body shortly before separation from active duty, but they have continued. The veteran testified that no medical doctor has told him that the problems he had in service or right after service were the symptoms of multiple sclerosis. He did testify that physicians told him his multiple sclerosis "started coming on 10 years or more, just about the time I was getting---I was finally discharged." He further explained that he has suffered from facial tingling and body stiffness since before moving to Texas. Applicable Laws and Regulations For disability resulting from personal injury suffered in the line of duty, or for aggravation of a preexisting injury suffered in the line of duty, the United States will pay compensation to any veteran thus disabled and who is discharged or released under conditions other than dishonorable from the period of service in which said injury was incurred, or preexisting injury was aggravated. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. For veterans who served 90 days or more during a period of war, if multiple sclerosis becomes manifest to a degree of 10 percent or more within seven years from the date of separation from such service, such disease will be considered to have been incurred or aggravated by such service, notwithstanding there is no record of evidence of such disease during service. 38 U.S.C.A. § 1112(a)(4); 38 C.F.R. § 3.307(a)(3). For veterans who served 90 days or more during a period of war, if a psychosis becomes manifest to a degree of 10 percent or more within one year from the date of separation from such service, such disease will be considered to have been incurred or aggravated by such service, notwithstanding there is no record of evidence of such disease during service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. A person who submits a claim for VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 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 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Generally, for a claim to be well grounded, a claimant must submit each of the following: (1) a medical diagnosis of a current disability; (2) medical evidence, 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 in-service injury or disease and the current disability. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table), and Epps v. Gober, 126 F. 3d 1464, 1468 (Fed. Cir. 1997) (expressly adopting definition of well-grounded claim set forth in Caluza, supra), cert. denied sub nom. Epps v. West, 141 L.Ed. 2d 718, 118 S. Ct. 2348 (1998) (mem.). Until a well-grounded claim has been presented, VA has no duty to assist a claimant. Morton v. West, 12 Vet. App. 477 (1991), mot. for en banc review den'd July 28, 1999. When a claim is denied by the RO and no timely appeal is filed, the claim, generally, may not thereafter be reopened and granted and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7105(c) (West 1991). However, if new and material evidence is presented or secured with respect to a claim which has been denied, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). When a veteran seeks to reopen a claim based on additional evidence, the Board must perform a three-step analysis. First, the Board must determine whether the evidence is "new and material." If the Board determines that the veteran has produced new and material evidence, the claim is reopened and the Board must then 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). Finally, if the claim is well grounded, the Board must evaluate the merits of the veteran's claim in light of all the evidence, after ensuring that the duty to assist has been fulfilled under 38 U.S.C. § 5107(b). Winters v. West, 12 Vet. App. 203 (1999) (en banc); Elkins v. West, 12 Vet. App. 209 (1999) (en banc). New and material evidence means evidence not previously submitted, which is neither cumulative nor redundant, and bears directly and substantially upon the specific matter under consideration, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a); see Hodge v. West, 155 F.3d 1336 (Fed. Cir. 1998). Since the April 1994 decision, the record has been extensively augmented, especially with medical records and physicians' statements. Particularly significant is Dr. R.A.'s letter of March 15, 1995, in which he referred to ophthalmic symptomatology consistent with optic neuropathy during the seven-year presumptive period. This additional evidence does provide a "more compete picture of the circumstances surrounding the origin" of the veteran's multiple sclerosis. See Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1999). Now that the claim is reopened, the remaining question is whether the entire record reveals a well-grounded claim. Although the veteran asserts that he had multiple sclerosis in service, as a layperson he is qualified only to provide competent evidence of the symptoms he experienced, not of the diagnosis of an in-service disease or injury, or of a nexus between a current diagnosis and service. Falzone v. Brown, 8 Vet. App. 398 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The veteran contends that despite the fact that the disease was not diagnosed until 1992, he was experiencing debilitating manifestations of the disease during service and within the seven-year presumptive period following service. There is apparently no doubt that the veteran has multiple sclerosis, so the first step of the Caluza analysis of a well-grounded claim is met. The veteran testified that during service he experienced numbness in the right hand. Among his service medical records is no mention of any complaints of, treatment for or diagnosis of numbness of the right hand or multiple sclerosis. Among the post-service medical records in the claims folder there is evidence of an eye disorder manifested by double vision within the presumptive period, but there is no medical evidence of the presence of the right-sided numbness that the veteran said was present within seven years following service. None of the records indicates that the eye disorder is a symptom of multiple sclerosis. Although the veteran may offer competent evidence of the presence of observable symptoms, his assertions that the right-sided numbness he had in service, the eye problems after service, and the limping after service that he indicated began within the seven year period following separation from active duty are not competent evidence of the existence of multiple sclerosis during service, or of its presence to a compensable degree within one year following service, as the veteran is a layperson. Falzone; Grottveit; Espiritu. What this record lacks is a statement or opinion from a physician that these symptoms reported during the presumptive period, especially the ocular abnormalities, were indeed attributable to multiple sclerosis. Until a well-grounded claim has been presented, VA has no duty to assist a claimant. Roberts v. West, 13 Vet. App. 185 (1999); Morton v. West, 12 Vet. App. 477 (1999). ORDER A well-grounded claim not having been submitted, service connection for multiple sclerosis is denied. REMAND Based on a preliminary review, it would appear that the issue of service connection for a psychiatric disorder should be dismissed because the claims folder contains no timely notice of disagreement. The veteran, however, should be afforded the opportunity to present evidence and argument whether he has filed a valid notice of disagreement with regard to the issue of service connection for a psychiatric disorder. See March v. West, 11 Vet. App. 468 (1998). To ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The veteran and his representative should be afforded a reasonable period to submit evidence and argument on whether a timely notice of disagreement has been submitted on the issue of service connection for a psychiatric disorder. Thereafter, the RO should formally adjudicate whether a timely notice of disagreement has been submitted on the issue of service connection for a psychiatric disorder. 2. If it is determined by the RO that a timely notice of disagreement has not been submitted on the psychiatric disorder issue, the veteran and his representative should be informed of the right to file a notice of disagreement with that determination. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The veteran need take no action until he is notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has 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. John E. Ormond, Jr. Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1998).