Citation Nr: 0007821 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 97-02 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for multiple sclerosis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from April 1974 to April 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of December 1995 by the Department of Veterans Affairs (VA), Regional Office (RO) in Detroit, Michigan. FINDINGS OF FACT 1. In an April 1991 decision, the Board denied service connection for multiple sclerosis. 2. Evidence received since the April 1991 Board decision is not so significant that it must be considered in order to fairly decide the merits of the claim for service connection for multiple sclerosis. CONCLUSIONS OF LAW 1. The Board's April 1991 decision which denied service connection for multiple sclerosis is final. 38 U.S.C.A. §§ 7103, 7104 (West 1991). 2. Evidence received since April 1991 is not new and material, and the veteran's claim for service connection for multiple sclerosis has not been reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131 (West 1991). A preexisting disease or injury will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during service, unless there is a specific finding that the increase in disability during service is due to the natural progress of the disease. See 38 U.S.C.A. § 1153 (West 1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all of the evidence of record pertaining to the manifestations of the disability prior to, during, and after service. See 38 C.F.R. § 3.306(b) (1999). The Board notes that the veteran's claim for service connection for multiple sclerosis was considered in the past, including a Board decision in April 1991. The Board's April 1991 decision is final. See 38 U.S.C.A. §§ 7103, 7104. However, applicable law provides that a claim which is the subject of a prior final decision may nevertheless be reopened upon presentation of new and material evidence. See 38 U.S.C.A. § 5108. When a veteran seeks to reopen a final decision based on new and material evidence, a three-step analysis must be applied. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); Winters v. West, 12 Vet. App. 203 (1999); Elkins v. West, 12 Vet. App. 209 (1999). The first step is to determine whether new and material evidence has been received under 38 C.F.R. § 3.156(a). Secondly, if new and material evidence has been presented, then immediately upon reopening the veteran's claim, the VA must determine whether the claim is well- grounded under 38 U.S.C.A. § 5107(a). In making this determination, all of the evidence of record is to be considered and presumed to be credible. See Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). Third, if the claim is found to be well grounded, then the merits of the claim may be evaluated after ensuring that the duty to assist has been met. New and material evidence means evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the 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 also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Further, when determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The Court has also held that in order to reopen a claim, there must be new and material evidence presented or secured "since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits." Evans v. Brown, 9 Vet. App. 273, 285 (1996). Accordingly, the Board must consider whether new and material evidence has been received since the April 1991 rating decision. The evidence which was of record at the time of the prior denial included the veteran's service medical records which showed that in June 1976 she was treated for complaints of left sided paresthesia and weakness. The left handgrip was weak as were left side reflexes. There was no history of a head injury. The veteran was hospitalized for a neurological evaluation. During the course of the hospitalization, she showed continued improvement. The diagnosis was cerebrovascular insufficiency syndrome of the right middle cerebral artery of undetermined etiology. Other records dated in June 1976 contain similar information. On July 6, 1976, the veteran indicated that she felt better and had completely recovered. She was noted to be asymptomatic with the exception of facial asymmetry which she stated had been there for many years. The report of the examination conducted in April 1977 for the purpose of the veteran's separation from service shows that she had a history of an episode of left sided weakness in June 1976, but was without symptoms since that time. The record also included a letter dated in June 1986 from Surendra Kaul, M.D., which showed that the veteran had a well documented diagnosis of multiple sclerosis since 1970. At that time, she had almost spontaneous onset of quadriplegia which worsened in the first 24 hours, and got better gradually over the course of 6 months. Since then, she had been pretty stable with an occasional exacerbation. Similarly, a letter from H. F. Labsan, M.D., shows that he treated the veteran for multiple sclerosis beginning in 1972. The Board found in the decision of April 1991 that the multiple sclerosis had been diagnosed prior to her entry into service and did not increase in disability during service. Therefore, the Board denied service connection for multiple sclerosis. The additional evidence received since April 1991 includes records from the Social Security Administration dated in 1980 which show that the veteran was found to have been disabled beginning in November 1979 due to optic nerve atrophy due to multiple sclerosis. The records are from several years after the veteran's separation from service and do not contain any medical opinion showing that the multiple sclerosis was aggravated by service. The additional evidence which has been presented also includes VA medical treatment records dating from 1980's and later. The records show treatment for multiple sclerosis. Again, however, the records do not contain any medical opinion showing aggravation of the disorder in service many years earlier. The Board has noted that a record dated in June 1995 shows that the veteran reported a history of having multiple sclerosis which was in remission prior to service, but which flared up in service after a bombing. Significantly, however, temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to the symptoms, is worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993). See also Beverly v. Brown, 9 Vet. App. 402 (1996). Furthermore, the fact that the veteran's own account of the etiology of her disability was recorded in her medical records is not sufficient to support the claim. In LeShore v. Brown, 8 Vet. App. 406, 409 (1995), the Court held that: Evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute "competent medical evidence"...[and] a bare transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional. The Board also notes that the veteran's own statements in which she relates her current multiple sclerosis to service are cumulative with respect to the previously considered evidence. The Board further notes that the veteran is not qualified to give a medical opinion as to the etiology of the current symptoms. The Court has held that lay persons, such as the veteran, are not qualified to offer an opinion that requires medical knowledge, such as a diagnosis or an opinion as to the cause of a disability. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). The Board finds that, although several new items of evidence have been presented since the prior denial, the evidence is not material as it does not address the question of whether the veteran's current disability was aggravated by her period of service. In light of the lack of medical evidence, the Board finds that the additional evidence is not so significant that it must be considered in order to fairly decide the merits of the claim. For this reason, the Board concludes that the additional evidence presented since April 1991 is not new and material, and the claim for service connection for multiple sclerosis has not been reopened. ORDER The veteran's claim for service connection for multiple sclerosis has not been reopened. The appeal is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals