Multiple Sclerosis/herbicide Exposure Case Dated: March 21, 2007

[allan]

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 05-2783

Bill L. Clapper, Appellant,

v.

R. James Nicholson,

Secretary of Veterans Affairs, Appellee.

Before KASOLD, Judge.

MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R. 30(a),

this action may not be cited as precedent.

KASOLD, Judge: Veteran Bill L. Clapper appeals through counsel that

part of a June 22, 2005, decision of the Board of Veterans' Appeals (Board)

that denied service connection for multiple sclerosis (MS) due to

herbicide exposure. Mr. Clapper argues that the Board (1) erred in

requiring him to provide objective evidence of multiple sclerosis during

the seven-year statutory period and in failing to apply the benefit of the

doubt doctrine, (2) failed to provide him with a fair personal hearing

because the hearing officer did not suggest that he obtain supplemental

medical opinions, and (3) failed to provide adequate pre-adjudicatory

notice. The Secretary contends that the Board's decision is plausible and

supported by an adequate statement of reasons or bases. Single-judge

disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-

26 (1990). For the reasons set forth below, that part of the Board's

decision that is on appeal will be set aside and remanded.

Mr. Clapper's argument that the Board erred in requiring him to

produce objective evidence of MS arises out of the Board's discussion of

two VA medical opinions requested by the Secretary as to whether Mr.

Clapper exhibited symptoms of MS within seven years of leaving service,

based on a review of his claims folder. The first opinion, dated December

2002, is described by the Board as noting a history of "some transient

neurological symptoms in 1976, [but] there was no supporting documentation

from any medical facility," and the conclusion that there was "no evidence

to support

a claim of symptoms prior to 1993." R. at 8-9; see also R. at 261.

As to the second opinion, dated December 2003, the Board stated that the

examiner "was requested to provide an opinion as to whether there was

objective evidence of multiple sclerosis within seven years of" Mr.

Clapper's leaving service. R. at 9. The Board stated the examiner's

report noted a medical examination that Mr. Clapper had numbness and

vertigo in March 1978 and that this may have been an early indication of

symptoms of MS, but that, inter alia, this did not meet the "objective

evidence criteria" and it was not likely that this symptom was the initial

symptom of MS. R. at 9-10. The Board further stated that the examiner

also noted that there "was no further neurological progression that

occurred over the next 5 to 10 years after the veteran's March 1978

complaints." Id.

The December 2002 VA medical examiner's conclusion that there was "no

evidence to support a claim of symptoms prior to 1993" appears to be based

on a rejection of the history of transient neurological symptoms contained

in the claims on the basis that there were no medical reports in the file

corroborating that history. R. at 9. Similarly, the December 2003

medical examiner appears to have rejected the March 1978 report of

numbness and vertigo as the initial symptoms of MS, at least in part,

because it did not meet the "objective evidence criteria." R. at 10.

Thus, it appears that both doctors rendered their opinions based on the

medical reports in the claims file and that other reports of symptoms were

either not considered or were rejected because they were not corroborated

in the medical records.

This impression is fostered by the fact that there is other evidence

of neurological problems prior to, as well as subsequent to, the March

1978 medical report of numbness and vertigo noted by the December 2003

examiner, to wit: lay testimony concerning Mr. Clapper's symptoms of

blurry eyes in 1974, loss of equilibrium in 1977, a dragging right leg in

1979, and a numb right arm in 1984, (R. at 131), and a September 1978

medical notation stating that Mr. Clapper's "arms go to sleep." R. at 56

. Additionally, although the December 2003 examiner noted the March 1978

medical report of numbness and vertigo as the initial symptom possibly

related to MS, there is a January 2000 VA outpatient report that notes Mr.

Clapper's history of "blurred/double night vision" in 1976 and "difficulty

with his equilibrium while walking across a barn catwalk" in 1978, which

were identified in that report as the "[f]irst symptoms" of MS. R. at

196.

Inasmuch as lay persons are competent to testify to symptoms they can

observe or feel and such testimony cannot be rejected solely because it

is not corroborated by contemporaneous medical records, see Buchanan v.

Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the "Board

cannot determine lay evidence lacks credibility merely because it is

unaccompanied by contemporaneous medical evidence"), and given the

apparent rejection or nonconsideration by the VA medical examiners of such

reports contained in the claims file, the Board should have sought

clarification from the medical examiners as to what consideration, if any,

they gave to these reports, or otherwise discussed this issue. See

Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (finding that pursuant to 38

C.F.R. 19.9(a), upon assessing medical reports, "f further evidence [

or] clarification of the evidence . . . is essential for a proper

appellate decision," the Board should remand the case); see also Owens v.

Brown, 7 Vet.App. 429, 433 (1995) (stating that it is the responsibility

of the Board to assess the weight and credibility to be given to evidence);

Allday v. Brown, 7 Vet.App. 517, 527 (1995) (holding that the Board's

statement of reasons or bases "must be adequate to enable a claimant to

understand the precise basis for the Board's decision, as well as to

facilitate review in this Court"). This is particularly so where, as

here, the Board assigned great weight to these VA opinions and, with

regard to the December 2003 opinion, relied on the fact that the examiner "

emphasized that there was no further neurological progression that

occurred in the 5 to 10 years after the veteran's March 1978 complaints."

R. at 11. Accordingly, remand is appropriate. See Tucker v. West, 11 Vet.

App. 369, 374 (1998) ("[W]here the Board has incorrectly applied the law,

failed to provide an adequate statement of reasons or bases for its

determinations, or where the record is otherwise inadequate, a remand is

the appropriate remedy.").

Mr. Clapper's argument that he did not receive a procedurally fair

hearing is mooted. See Dunn v. West, 11 Vet.App. 462, 467 (1998) (remand

of appellant's claim under one theory can moot other theories advanced on

appeal). His notice argument may be addressed on remand. See Best v.

Principi, 15 Vet. App. 18, 20 (2001) ("A narrow decision preserves for the

appellant an opportunity to argue those claimed errors before the Board at

the readjudication, and, of course, before this Court in an appeal, should

the Board rule against him."). On remand, he may present any additional

evidence and argument in support of the matters remanded, and the Board

must consider any

evidence and argument so presented. See Kay v. Principi, 16 Vet.App.

529, 534 (2002). This matter is to be provided expeditious treatment on

remand. See 38 U.S.C. 7112.

That part of the June 22, 2005, decision of the Board that is on

appeal is SET ASIDE and REMANDED for further adjudication.

DATED: March 21, 2007

Michael P. Horan, Esq.

VA General Counsel (027)

Source: http://search.vetapp.gov/isysquery/576ed86...691ef089/7/doc/

Edited August 8, 2007 by allan

[Berta]

I dont see this claim as having any basis as a herbicide exposure claim at all.

However the BVA also considered the presumptive 7 year period regarding MS.Which has nothing to do with Agent Orange.

While we dont know what the outcome is here- the BVA corrected considered the veteran's potential for SC under the presumptive regs since he did not fit under the AO regs.

I traced this CAVC case back to the BVA case:

http://www.va.gov/vetapp05/files3/0515583.txt

The veteran had supplied buddy statements as to his symptamology during the presumptive period which could possibly lead to an award.

There is no evidendentiary case law nor any medical support whatsoever for the AO MS issue.

Edited August 8, 2007 by Berta