BVA9507432 DOCKET NO. 92-20 320 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for multiple sclerosis. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Christopher P. Kissel, Associate Counsel INTRODUCTION The appellant served on active duty from July 1964 to July 1968. This case comes before the Board of Veterans' Appeals (the Board) from a September 1991, rating decision of the St. Petersburg, Florida, Department of Veterans Affairs Regional Office (VARO). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that multiple sclerosis, not affirmatively diagnosed until the mid 1980's, became manifest during service as substantiated by his reported history of symptoms involving fatigue, upper respiratory infection, headaches and numbness of the hands, legs and feet, or alternatively, that such condition became manifest to a compensable degree within the presumptive period after service as substantiated by his reported history of symptoms involving all of the aforementioned as well as involving a back condition, diagnosed in 1973 as coccydynia or coccygodynia. He has argued that these symptoms were representative of the onset of multiple sclerosis and were misdiagnosed and attributed to acute illnesses. 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(s). 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 a preponderance of the evidence of record is against the appellant's claim of entitlement to service connection for multiple sclerosis. FINDINGS OF FACT 1. The appellant served on active duty from July 1964 to July 1968. 2. The medical evidence of record does not establish a history, treatment, or diagnosis of multiple sclerosis, or an onset of symptoms attributable to multiple sclerosis until many years after service. CONCLUSION OF LAW Multiple sclerosis was not incurred in or aggravated by military service, and may not be so presumed. 38 U.S.C.A. §§ 1101, 1110, 1153, 5107(b) (West 1991); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). Furthermore, the undersigned believes that this case has been adequately developed for appellate review by VA and that a disposition on the merits is now in order. The appellant is claiming entitlement to service connection for multiple sclerosis. Service connection may be granted for multiple sclerosis if symptomatology attributable to such disease appeared during service, or if pre-existing such service, was aggravated therein. 38 C.F.R. §§ 3.303, 3.306 (1994). Alternatively, where a veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, and multiple sclerosis became manifest to a degree of 10 percent within seven years from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of the disease during the period of service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1113 (West 1991); 38 C.F.R. § 3.307(d) (1994). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service; the presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. 38 C.F.R. § 3.303(d) (1994). The dispositive issue on appeal concerns the etiology of the appellant's multiple sclerosis relative to his period of military service. In the opinion of the Board, the pertinent and relevant medical evidence does not indicate that multiple sclerosis was incurred in or aggravated by military service. Further, it is the opinion of the Board that the medical evidence of record does not support the appellant's contention that early manifestations of his disease became manifest to a compensable degree within the presumptive period after service. In connection with the adjudication of this claim, and pursuant to 38 C.F.R. § 20.901, the Board requested an independent medical expert opinion to address the following question: What is the date of the earliest manifestation of the veteran's multiple sclerosis as shown by the evidence of record. Accordingly, in February 1995, the opinion of A. B. Follender, M.D., Professor and Chairman, Department of Neurology, College of Medicine, Texas A & M University, was made part of the record on appeal and, in accordance with the Board's notice and comment procedures, was made available to the appellant and his representative for review and response prior to the preparation of this decision. 38 C.F.R. § 20.903 (1994); see also Thurber v. Brown, 5 Vet.App. 119 (1993) and Chairman's Memorandum No. 01-94- 19 (September 8, 1994). The Board finds no merit to the appellant's representative's arguments that our notice and comment procedures violated the appellant's due process rights. In an advisory opinion dated November 2, 1993, the General Counsel of the Department of Veterans Affairs held that the Board's procedures are consistent with the general rule of law that, absent some overriding provision of law, notice to the representative constitutes notice to the veteran. See O.G.C. Adv. 42-93 (Nov. 2, 1993). After reviewing all of the evidence of record and thoroughly discussing the appellant's medical history relative to his multiple sclerosis, Dr. Follender stated, in pertinent part, the following opinion: There is, of course, no evidence to suggest that this neurologic disease can be brought on by military service, Agent Orange, or emotional stress. I would therefore conclude that his patient's Multiple Sclerosis is not service-connected. While it is conceivable that earlier manifestations might have been overlooked or misinterpreted by his physicians, I cannot date the onset of the disorder any earlier than 1983, when objective neurologic findings were first documented. As his service dates were from 1964 to 1968, this would date the onset of his disease some 15 years after his period of active duty. With respect to the nature and etiology of the appellant's condition, Dr. Follender offered the following commentary based on his review of the record in this case: The patient in question was initially evaluated neurologically in late 1983, at age 37. According to the neurologist's records, he reported a three month history at that time of progressive numbness and weakness of the lower limbs with associated gait disturbance. On examination he was found to have objective signs of spinal cord dysfunction (spastic paraparesis and sensory deficit). Appropriate studies were done to exclude spinal cord compression and, ultimately, MR imaging of the head and spinal cord confirmed the presence of demyelinating plaques. I would concur that the diagnosis of Multiple Sclerosis was reasonably well established at that point. Although details of the patient's subsequent clinical course are not available to me, the implication from the appellant's communications is that the course has been progressive and that the disorder's manifestations have largely been those of progressive spinal cord dysfunction (weakness, spasticity, sphincter dysfunction). This is compatible with a diagnosis of chronic progressive Multiple Sclerosis with onset in the mid to late 30's. There is no objective clinical evidence of neurologic dysfunction prior to 1983 in this patient. The retrospective claims by the patient, his former physician, dentist, his relatives, and some co-workers, that symptoms such as headache, recurrent respiratory infections, coccydynia, fatigue, or subjective numbness and paresthetic sensations in the limbs, were earlier symptoms of Multiple Sclerosis is highly conjectural and quite unlikely. (Emphases added in the original). In view of the above, the Board concludes that the weight of the evidence is against the appellant's claim. There is no objective medical evidence to support a grant of service connection for multiple sclerosis as either incurred in or aggravated by military service. Service medical records are negative for complaints, treatment or manifestations of this disease. Moreover, the Board finds no objective medical evidence to support a grant of service connection on a presumptive basis. The record on appeal reflects that manifestations of multiple sclerosis were not medically noted until the mid 1980's. Dr. Tiwari's opinion of April 1992, appears to have been based solely on the appellant's reported medical history and contained no supporting clinical findings and, as such, appears speculative in nature, particularly when compared to Dr. Follender's medical opinion of February 1995. It is significant in this case that the medical opinion prepared by Dr. Follender had the benefit of review of the appellant's entire medical history as contained in the claims folder. Moreover, it should be noted that the Board does not have to accept as probative to the disposition of the claim a medical assessment which appears based solely on a veteran's reported medical history. See Swann v. Brown, 5 Vet.App. 229 (1993); see also Wilson v. Derwinski, 2 Vet.App. 614 (1992) and Wood v. Derwinski, 1 Vet.App. 190 (1991). The appellant's arguments as well as those advanced by his friends, relatives and co-workers concerning the etiology of claimed disability are outweighed by the objective medical evidence, and specifically by Dr. Follender's February 1995, medical opinion. The Board cannot entertain unsupported lay speculation on medical issues. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Accordingly, the Board concludes that entitlement to service connection for multiple sclerosis has not been established by the evidence of record. The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required under the provisions of 38 U.S.C.A. § 5107(b). ORDER The appeal is denied. C. P. RUSSELL 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.