BVA9500594 DOCKET NO. 94-12 353 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to service connection for multiple myeloma. ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The veteran had periods of active service from February 1962 to August 1983 and from May 1984 to July 1989. This case is on appeal from a February 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which, among other things, denied entitlement to service connection for multiple myeloma. That rating decision addressed other issues as well. Service connection was granted for hypertension and for lipoma, and noncompensable ratings were assigned for each. Service connection was denied for benign prostatic hypertrophy, carpal tunnel syndrome, nephrolithiasis, and loss of bowel and bladder control. In his notice of disagreement which was dated in April 1993, the veteran denied that he had any bowel incontinence. He also denied that he had "benign growth of skin." In a July 1993 communication of the veteran referred to occasionally symptomatic lipomas. He also stated that while in service he was evaluated for genitourinary difficulties. Additionally, he referred to treatment in service for left eye disability, a broken left fourth finger, and subluxation of the right thumb. It is not clear whether or not he is seeking a compensable rating for lipomas and/or service connection for other disabilities. This matter is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that he had early signs and symptoms associated with multiple myeloma during his many years of active duty and therefore his currently diagnosed multiple myeloma was subclinically present during his active service. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all the evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that the evidence is sufficiently balanced to entitle the veteran to the benefit of the doubt on the issue of service connection for multiple myeloma. FINDING OF FACT Multiple myeloma had its onset during the veteran's lengthy military service. CONCLUSION OF LAW Multiple myeloma was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303(d) (1993). REASONS AND BASES FOR FINDING AND CONCLUSION Under the provisions of 38 U.S.C.A. § 5107(a), a person who submits a claim to VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well-grounded. If the person meets this burden, VA is obligated to assist in developing the facts pertinent to the claim. A well-grounded claim is one that is plausible; that is, meritorious on its own, or capable of substantiation. King v. Brown, 5 Vet.App. 19 (1993). In this case, notation was made in the veteran's report of medical history made at the time of retirement examination in May 1983 that he had lumbosacral strain in 1982. Also, the evidence of record includes statements from Dr. Jose L. Figueroa-Casas, the veteran's treating oncologist, that although not diagnosed until 1992, the veteran's multiple myeloma had "existed at least the past several years because of its nature. The present medical condition developed while [the appellant] was active militarily. . . ." These pieces of evidence are clearly sufficient to find that the veteran's claim is plausible. Further, the Board finds that the evidence of record has been adequately developed to permit a fair adjudication of the issue and is sufficiently balanced to entitle the veteran to the benefit of the doubt raised thereby. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. 38 C.F.R. § 3.303(d) provides that service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Applying these principles to the veteran's case, the service medical records which are available to the Board include the report of medical history made at the time of retirement examination in May 1983. At that time the veteran checked "yes" and also checked "no" as to whether or not he had had or was having recurrent back pain. Notation was made that he had had low back strain in 1982, which had partially resolved. Clinical examination at that time revealed a normal musculoskeletal system. The available service medical records also include a purported report of a June 26, 1984, visit to the orthopedic clinic at Fort Buchanan, Puerto Rico at which time the veteran complained of low grade, constant back pain. Reportedly, the lumbar and thoracic spine was tender to pressure. The assessment was chronic thoracolumbar pain. X-ray studies and blood tests were recommended, but are not of record. This report will be referred to below. The post service evidence includes medical reports dated in 1991 referring to congenital heart disease, cardiac arrhythmias, and atrial fibrillation. None of the 1991 records contain reference to multiple myeloma. An X-ray study of the thoracic spine was accorded the veteran in March 1992 at a service department facility for "workup severe T11-12 pain, lifting." The study showed minimal spondyloarthritic changes of the dorsal spine. A compression fracture of the 10th thoracic vertebra due to hyperflexion could not be ruled out. There were no lytic or blastic lesions. The opinion was minimal spondyloarthrosis. The veteran was hospitalized at a private facility in April 1992 with no previous history of systemic disease. Reportedly, he had been complaining of chronic low back pain which he related to the United States Army Physical Training Program dating back to the late 1970's. The pain apparently persisted off and on until about six months ago, when it recurred with more severity. The veteran stated there was an increase in the pain's intensity and he sought the services of a general practitioner who started him on acupuncture. There was no improvement so he was seen by a physician who found lytic lesions on X-ray study. Reportedly, a CT scan also showed several lesions that were lytic, especially on the second lumbar vertebra. A bone marrow aspiration done in April 1992 indicated the veteran had multiple myeloma. In a May 1992 statement Dr. Jose L. Figueroa-Casas stated the veteran was under his care for multiple myeloma involving the spine. He remarked that, "This condition, although recently diagnosed, has existed at least for the past several years because of its nature. The present medical condition developed while [the appellant] was active militarily, probably around the seventies or before. . . ." Later statements from Dr. Figueroa- Casas are of record. A VA general medical examination was apparently accorded the veteran in September 1992 (the veteran contends he has not been accorded an examination by VA). Examination findings were recorded and the diagnoses included multiple myeloma with involvement of the spine. In June 1993, Colonel Roberto Barja, an orthopedic surgeon with the Army at the Eisenhower Medical Center, Fort Gordon, Georgia, stated the veteran first developed severe back pain when 55 years of age in 1982. The veteran reportedly retired in August 1983, and continued to have back pain. A couple of years later, he reentered the military and served until his departure on July 31, 1989. "All along, he continued with acute episodes of back pain which ultimately resulted in compression fractures of the spine and paralysis." Colonel Barja stated that from a review of the veteran's health records, including X-ray studies, he was able to determine that the onset of the veteran's illness predated his retirement from the military in 1983. Dr. Barja opined that the veteran's present condition was the result of "the relentless activity of the malignant multiple myeloma which remained undiagnosed until he developed the pathologic fracture of the spine with spinal canal stenosis, spinal cord compression, and paraplegia." Subsequently, a question arose as to the authenticity of the June 26, 1984, orthopedic clinic report referred to above which was signed by Colonel Barja. M. Bagan, M.D., stated in an interoffice communication at the RO dated in December 1993 that he or she believed it was "highly improbable to establish any relationship between the alleged back pains treated in 1984 with diag of M.M. confirmed in 1992; particularly in the absence of complaints or treatment from 1984- 1989 while in active serv . . . . Anyway, I don't consider med. statement by Dr. Plaja (sp.?) to be reliable." Subsequently, in January 1994, Colonel (retired) Ignacio Hernandez Fragoso, stated that he had known the veteran for many years and they had always been in contact, especially after 1986 when he was planning to fill the veteran's position as Commander of the Army Health Clinic at Fort Buchanan, Puerto Rico. He stated that during his various visits to Puerto Rico and the health clinic in 1989, he noticed the veteran had been complaining of occasional back pain. When the veteran's symptoms persisted, Colonel Fragoso advised him to discontinue self- medication and seek expert opinion and care. He claimed that he also found other colleagues had similarly advised the veteran. He noted that the veteran kept postponing "for later" the studies and tests that were recommended. He noted that after the veteran's retirement in 1989, he remained working in the service department clinic and Colonel Fragoso noted the veteran did not take his symptoms seriously. He stated that toward the end of 1989 and in the years 1991 and 1992, the veteran's symptoms became more frequent and more severe. In February 1994 the clinical nurse at Fort Buchanan, Puerto Rico, stated that she had known the veteran ever since the 1960's. She recalled that she knew of the veteran's frequent low back pain as early as 1984. She stated that the veteran attributed his pain to strain secondary to the Army physical fitness program. She advised him to take better care of his back, but she recalled he always said he was too busy and kept postponing advice given him by associates. She stated that to mitigate his pain, he frequently took muscle relaxants and mild pain killers. She stated that she often gave him massage and ultrasound during lunch breaks or before the veteran left home at the end of the work day. Indicating that the veteran's pain intensified with retirement, she reported this was known to everyone in the clinic. Also in February 1994, a pharmacist at the service department health clinic at Fort Buchanan, Puerto Rico, reported that he worked for the veteran at the health clinic between 1984 and 1989. The individual recalled that "all along" the veteran complained of low back pain which he self-medicated with muscle relaxants and mild pain killers. The individual stated that as time permitted, the clinic nurse frequently assisted the veteran with ultrasound and ice bags. He further related that after the veteran's retirement in 1989, the pains became worse and scheduled medications were prescribed by staff physicians at the clinic. A March 1994 communication from the Surgeon General of the Army and an undated communication from a retired major general attest to the veteran's character and professional ability. In its consideration of the merits of the case, the RO was caught up in the controversy as to whether or not Dr. Barja ever saw the veteran in June 1984 as indicated by the service department consultation sheet. This also calls into question the opinion expressed by Dr. Barja in June 1993 regarding the etiology of the veteran's multiple myeloma. The authenticity of the reported consultation sheet has apparently been questioned by a physician at the RO. The rating board physician commented in a December 1993 communication that he did not consider the medical statement by a Dr. Plaja (sp.?) to be reliable. However, no rationale was offered by the physician for this opinion. Regardless, when the Board sets aside this controversy and examines the evidence which is still of record, it finds that there remains substantial positive evidence, consisting of the veteran's statements and supporting detailed and credible statements from medical professionals at the health clinic at Fort Buchanan, Puerto Rico and elsewhere, as to a continuity of back symptoms after 1983, and the medical opinion expressed by the veteran's treating oncologist in 1992 (just 2 1/2 years following the veteran's discharge from many years of honorable service) that the disorder was present during active service. The record also contains substantial negative evidence in the form of an absence of clinical documentation of back symptoms after 1983 and a lack of diagnosis of multiple myeloma until 1992. The record does not contain a medical opinion contrary to the opinion of the oncologist that is supported by a rationale. Overall, therefore, the Board finds the positive and negative evidence is at least in approximate balance. Because the appellant is accorded the benefit of the doubt when the evidence is in equipoise pertaining to the merits of an issue in accordance with the provisions of 38 U.S.C.A. § 5107(b), the Board finds that service connection is warranted for multiple myeloma. ORDER Service connection for multiple myeloma is granted. RICHARD B. FRANK 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.