On appeal from the Department of Veterans Affairs (VA) Regional Office in No. Little Rock, Arkansas
THE ISSUES
Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
multiple sclerosis.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America, Inc.
ATTORNEY FOR THE BOARD
M. Hannan, Counsel
INTRODUCTION
The appellant had active service from January 1955 to January
1957.
This case comes before the Board of Veterans' Appeals (Board)
on appeal of an August 1998 rating decision issued by the
Little Rock, Arkansas Regional Office (RO) of the Department
of Veterans Affairs (VA). In that rating decision, the RO
denied the reopening of the appellant's claim of entitlement
to service connection for multiple sclerosis, as well as his
claim of entitlement to service connection for the residuals
of a subarachnoid block. While the notice of disagreement
and the statement of the case addressed both issues, the
October 1999 VA Form 9 substantive appeal only addressed the
new and material evidence issue. Therefore, the only issue
on appeal in this case is the issue listed on the title page.
By letter dated January 10, 2000, the appellant was informed
that his appeal was being certified to the Board. On October
2, 2000, the Board received additional evidence from the
appellant. At the same time, a motion for the submission of
evidence beyond the permitted 90-day period was submitted;
that motion was granted on October 12, 2000. Although a
waiver of initial review of this evidence by the RO was not
requested, in light of the Board's decision on appeal, a
remand pursuant to 38 C.F.R. § 20.1304 is not necessary.
FINDINGS OF FACT
1. Service connection for multiple sclerosis was denied by
the RO in a rating decision in December 1966. An appeal to
the Board was not perfected as to that rating decision and
hence, the denial became final.
2. Evidence submitted since the December 1966 rating
decision included private treatment reports dated from 1957
to 1985 and the October 2000 medical opinion of a private
physician, who with benefit of review of the evidence in the
claims file, to include the service medical records, opined
that the appellant's in-service treatment in 1956 optic
neuritis of the right ear and post-service treatment in 1963
and 1964 for unusual hearing symptoms and lower extremity
numbness were early manifestations of his later-diagnosed
multiple sclerosis.
3. There is no other evidence of record which competently
(i.e., contrary medical opinion by equivalent specialists)
rebuts the findings and conclusions reflected in the October
2000 medical opinion.
CONCLUSION OF LAW
1. The December 1966 rating decision is final. 38 U.S.C.A.
§ 7105(a) (West 1991); 38 C.F.R. § 20.1103 (2000).
2. Evidence submitted since the December 1966 rating
decision is new and material, allowing the Board to reopen
and review the appellant's claim of service connection for
multiple sclerosis. 38 U.S.C.A. § 5108 (West 1991); 38
C.F.R. § 3.156(a) (2000).
3. Multiple sclerosis was incurred within the seven-year
presumptive period after service. 38 U.S.C.A. §§ 1131, 1137,
5107(b) (West 1991); 38 C.F.R. §§ 3.307(a), 3.309(a) (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Governing statutory and regulatory provisions stipulate that
unappealed decisions of the RO and decisions of the Board are
final, and may be reopened only upon the receipt of
additional evidence that, under the applicable statutory and
regulatory provisions, is both new and material. 38 U.S.C.A.
§§ 5108, 7104(b) (West 1991); 38 C.F.R. §§ 3.104(a), 3.156
(2000). "New" evidence means more than evidence that has
not previously been included in the claims folder, and must
be more than merely cumulative, in that it presents new
information. See Colvin v. Derwinski, 1 Vet. App. 171
(1990); see also Evans v. Brown, 9 Vet. App. 273 (1996)
(question of what constitutes new and material evidence
requires referral only to the most recent final disallowance
of claim).
In order to reopen a claim which has been previously finally
denied, the claimant must present new and material evidence.
38 U.S.C.A. § 5108 (West 1991). 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 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 1356 (Fed. Cir.
1998). Evidence is material if it "tend[s] to prove the
merits of the claim as to each essential element that was a
specified basis for that last final disallowance of the
claim." Evans, 9 Vet. App. at 284 (1996).
Service connection for multiple sclerosis was the subject of
an unfavorable rating decision by the RO in December 1966.
Since the appellant did not appeal this decision, it became
final by operation of law. 38 U.S.C.A. § 7105(a) (West
1991); 38 C.F.R. § 20.1103 (2000).
The evidence considered by the RO in 1966 included the
service medical records and the report of a VA compensation
examination conducted in November 1966. The service medical
records were negative for a diagnosis of multiple sclerosis.
The VA examination of November 1966 resulted in a diagnosis
of multiple sclerosis. However, the RO denied the claim
because the aforementioned diagnosis did not fall within the
seven-year presumptive period provided by regulation
(38 C.F.R. §§ 3.307, 3.309)
Evidence submitted since the December 1966 rating decision
included private treatment reports dated from 1957 to 1985,
which denoted treatment in 1963 for symptoms of unusual
hearing of a possible neurologic origin and treatment in 1964
for numbing in the left arm and thumb and in the right leg;
the report of a VA examination conducted in May 1999, which
denoted a diagnosis of multiple sclerosis; and, the report of
an October 2000 medical opinion of a neuro-radiologist, Dr.
C. N. Bash, M.D., who with benefit of review of the evidence
in the claims file, to include the service medical records,
opined that the appellant's in-service treatment in 1956
optic neuritis of the right ear and post-service treatment in
1963 for unusual hearing symptoms were early manifestations
of his later-diagnosed multiple sclerosis.
Based on these reports, read together with the balance of the
evidence, the Board finds that under the more relaxed new and
material standard set forth under Hodge and its progeny, this
claim now deserve further consideration on a de novo basis.
Fossie v. West, 12 Vet. App. 1 (1998). Specifically, the
Board finds that this evidence is "new" because it was not
previously reviewed by the RO in connection with its original
denial of the claim in 1966, and material because it provides
reasonable inference that manifestations of multiple
sclerosis had their onset within the seven-year presumptive
period after service. On this point, the Board must emphasis
that the new-and-material-evidence standard does not require
the appellant to prove his claim; to the contrary, evidence
is new and material if it "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). In this case, the newly assembled evidence
satisfies this regulatory criteria.
A merits-based review of a claim requires the Board to
provide a written statement of the reasons or bases for its
findings and conclusions on material issues of fact and law.
38 U.S.C.A. § 7104(d)(1) (West 1991). To this end, the Board
must analyze the credibility and probative value of the
evidence, account for evidence which it finds to be
persuasive or unpersuasive, and provide reasons for rejecting
any evidence favorable to the veteran. See Masors v.
Derwinski, 2 Vet. App. 181 (1992); Hatlestad v. Derwinski, 1
Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49
(1990). Moreover, the Board may not base a decision on its
own unsubstantiated medical conclusions but, rather, may
reach a medical conclusion only on the basis of independent
medical evidence in the record or adequate quotation from
recognized medical treatises. See Colvin v. Derwinski, 1
Vet. App. 171 (1991).
Under pertinent law and VA regulations, service connection
may be granted if the facts, shown by the evidence, establish
that a disease or injury resulting in disability was incurred
coincident with service in the Armed Forces, or if pre-
existing such service, was aggravated therein. 38 U.S.C.A.
§§ 1110, 1111, 1131, 1153 (West 1991); 38 C.F.R. §§ 3.303,
3.306 (2000). Service connection may also be granted for
certain enumerated chronic diseases on a presumptive basis,
including multiple sclerosis, if manifestations of such
diseases are shown to be present to a degree of 10 percent or
more within seven years after service. 38 C.F.R. §§ 3.307,
3.309 (2000). Alternatively, with respect to any disease,
service connection may be granted if all the evidence
establishes that the disease was incurred in service.
38 C.F.R. § 3.303(d) (2000).
The Board concludes that the evidence supports a grant of
service connection for multiple sclerosis. When read
together with the service medical records and the private
treatment reports dated in 1963-64, Dr. Bash's report of
October 2000 provides sufficient proof that the appellant's
multiple sclerosis had its onset during the presumptive
seven-year period after service. The above-cited May 1999 VA
examination provides a sufficient basis to show that the
appellant currently has this disorder. Regarding its
etiology and manifestations, Dr. Bash's medical opinion
reflects the following, in pertinent part:
The patient presents a history of early,
undiagnosed MS [multiple sclerosis]
symptoms consistent with the nature of
the disease. Early symptoms are often
mild or temporary and often do not result
in the patient seeking care. At other
times, a patient presents symptoms
without an obvious etiology to a
physician, but the diagnosis is not made
because the disease is difficult to
diagnose. It is the pattern of episodic
symptoms affecting different places in
the neurologic system at different times
that presents the pattern eventually
leading to a diagnosis. MS has a
predilection for the optic nerve.
Often MS first presents symptoms of optic
neuritis. In this patient's Army service
record a significant decrease in visual
acuity was noted near the time of his
release. The patient stated he had
symptoms of episodic numbing of the body,
feet and hands for years following
service. The patient was seen for an
unusual hearing problem in May 1963 that
was then suspected to be of neurologic
etiology. In April 1964 he was seen for
numbing of his left arm and thumb in a
pattern that does not follow the
distribution of a single nerve. In June
1964 the patient was seen for an episode
of numbing of the right leg with a
history of a prior episode affecting the
left leg. By April 1966 the patient was
referred to a neurologist and diagnosed
with MS by May 1966.
In summary, it is my opinion that this
patient's episode of unusual hearing
symptoms that presented in May 1963 was
an early manifestation of his MS. It is
also my opinion that the deterioration in
visual acuity in his right eye noted in
November 1956 was as likely as not an
early symptom of his MS.
The Board finds that Dr. Bash's medical opinion, which
clearly places disabling, treatable manifestations of the
condition within the seven-year presumptive period, is
sufficient to establish service connection as the appellant
was separated from service in January 1957. It is
significant that the aforementioned medical opinion was based
on a review of the evidence in the file, which included the
service medical records and the private treatment records
dated from 1957 to 1985. Although a diagnosis of the
appellant's multiple sclerosis is not shown by the record to
have been made until 1966, or in other words, until after
expiration of the presumptive period, the Board finds that
the medical opinion of Dr. Bash now provides an approximate
balance of evidence for and against the claim which requires
that the benefit of the doubt be accorded to the appellant.
Accordingly, as there is no other evidence of record which
competently rebuts this opinion and finding none, the Board
concludes that service connection is warranted on a
presumptive basis for multiple sclerosis. 38 U.S.C.A.
§§ 1131, 1137, 5107(b); 38 C.F.R. §§ 3.307(a), 3.309(a).
ORDER
Service connection for multiple sclerosis is granted.
