BVA9508033 DOCKET NO. 91-35 745 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Whether an August 1988 rating decision denying service connection for multiple sclerosis was clearly and unmistakably erroneous. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. J. McCarty, Associate Counsel INTRODUCTION The veteran had active service from November 1987 to May 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1991 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In September 1991, the Board remanded the case for further development of the record. In August 1994, the veteran was afforded a personal hearing at the RO. For reasons which shall become apparent, the Board is assuming jurisdiction of the issue listed on the cover page. The certified issue of whether new and material evidence has been submitted to reopen the claim for service connection for multiple sclerosis need not be further addressed in view of the action taken below. CONTENTIONS OF APPELLANT ON APPEAL Essentially, the veteran contends that the August 1988 rating decision was clearly and unmistakably erroneous because the RO failed to properly apply the presumption of soundness, as defined in 38 U.S.C.A. § 1132 (West 1991), to his claim. He maintains that had the presumption been so applied, he would have been granted service connection for multiple sclerosis. 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 veteran'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 August 1988 rating decision was clearly and unmistakably erroneous in denying service connection for multiple sclerosis. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran's October 1987 enlistment examination was negative for multiple sclerosis or history thereof. 3. In service, the veteran was diagnosed as having probable multiple sclerosis and was subsequently discharged due to this disability; a medical board determined that his multiple sclerosis did not exist prior to his entrance into service. 4. In August 1988, the RO denied entitlement to service connection for multiple sclerosis finding that based upon "sound medical principles", which were not further defined, the disability preexisted the veteran's service and was not shown to have been aggravated therein. 5. Postservice medical records establish that the veteran presently has multiple sclerosis. 6. There is no clinical evidence of record that the veteran had multiple sclerosis prior to active service. CONCLUSIONS OF LAW 1. The August 1988 rating decision denying service connection for multiple sclerosis was clearly and unmistakably erroneous. 38 U.S.C.A. §§ 5107, 7104 (West 1991); 38 C.F.R. § 3.105(a) (1994). 2. Multiple sclerosis was incurred in service. 38 U.S.C.A. §§ 1131, 1132 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board finds that the issue of whether an August 1988 rating decision was clearly and unmistakably erroneous is plausible or capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a). The Board is also satisfied that all relevant facts have been properly developed, and that no further assistance to the veteran is required to comply with the duty to assist the veteran. In August 1988, the RO denied the veteran's claim for entitlement to service connection for multiple sclerosis. In the absence of receipt of a notice of disagreement within one year of the veteran's notification of such denial, that determination became final based upon the evidence of record then of record and is not subject to revision on the same factual basis in the absence of clear and unmistakable error. 38 C.F.R. § 3.105(a) (1994). The evidence of record before the RO in August 1988 included the veteran's service medical records, which contained an enlistment examination report and the report of medical board evaluation. These records clearly reveal that the veteran was diagnosed as having probable multiple sclerosis in January 1988, after having initially complained of left lower extremity weakness in December 1987. There are no findings in the service medical records which tend to establish that the veteran's symptomatology related to multiple sclerosis preexisted his entrance into service. Specifically, his enlistment examination was negative for findings or diagnosis of multiple sclerosis, and the findings of the medical board indicated that symptomatology related to multiple sclerosis did not exist prior to his service. The veteran was in good health prior to service and, in fact, had lettered as a college athlete. Postservice clinical evidence shows the veteran has definite multiple sclerosis by history and laboratory analysis. VA regulations provide that service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1131. A veteran is deemed to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance or enrollment, or where clear and unmistakable evidence demonstrates that the disease or injury existed before acceptance and enrollment. 38 C.F.R. § 3.304(b). The Board concludes that the August 1988 rating decision denying service connection for multiple sclerosis was clearly and unmistakably erroneous in that the RO stated that it relied upon "sound medical principles", which were never defined; did not even mention the presumption of soundness; and proceeded contrary to the clear weight of the evidence of record, which established that the veteran's disability did not exist prior to service. Service connection for multiple sclerosis is warranted. ORDER Service connection for multiple sclerosis is granted. 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, 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.