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Court Wins

Multiple Sclerosis Denial by BVA Contained Legal Error

Robert Chisholm

July 25, 2019

Updated: November 20, 2023

multiple sclerosis

Summary of the Case

The Veteran served on active duty in the U.S. Army from July 1968 to July 1971 as an aviation communication equipment repairman.  During his time in the Army, he served in Vietnam for 1 year installing portable aircraft towers and is presumed to have been exposed to Agent Orange.  In 1978, he reported pain in his cervical spine but also experienced symptoms of multiple sclerosis (MS) from 1985 to 1990.  His symptoms included difficulty walking which he described as, “sometimes I just couldn’t walk, and I’d just drop.”  In May 1990, the Veteran sought treatment for left arm numbness, which he had been experiencing for at least 2 years.  He also reported numbness on the 4th and 5th fingers of his right hand.  The examiner opined the weakness was the result of early ulnar neuropathy.  In December 2000, the Veteran was diagnosed with MS.

The Veteran filed a claim for service connection for MS in December of 2001 but was denied in September 2002 due to lack of diagnosis while in service or within the presumptive period after service.  In August 2007, his private treating physician noted he suffered from primarily spinal MS and the Veteran had been experiencing spinal pain dating back to 1978.  In September 2009, the Veteran submitted another claim for MS.  The regional office issued a denial due to lack of new and material evidence to substantiate that he had originally filed the claim on or before July 1978, which would have been the end of the 7-year presumptive window for MS relevant to his separation from service.  The Veteran filed an appeal to the Board requesting them to obtain a medical opinion to include a review of all medical records as well as service records.

In March 2017, the Board issued a decision in which it remanded the appeal back to the regional office to reconsider the December 2001 claim because additional service treatment records had been received. The Board instructed the regional office to obtain a medical opinion to specifically address the onset of the symptomatology, and the relationship, if any, between his diagnosis and his presumed exposure to herbicide agents during service in Vietnam. The Veteran had a VA examination and the examiner concluded that the MS was less likely than not caused by service due to the 20-year gap between separation from service and the first signs of symptoms. The examiner went on to opine that the MS was not related to herbicide exposure because there is no known relationship between herbicide exposure and subsequent development of MS.

Board denies service connection for MS on presumptive and direct bases

On September 28, 2017 the Board continued to deny service connection for MS, to include as due to herbicide exposure.  The decision was based on the nexus opinion of record which concluded that symptoms did not manifest until 1995, thus they were outside the presumptive window for MS.  The Board also concluded that it was less likely than not that the MS was due to herbicide exposure in service.

CCK appeals to the CAVC

Primarily, CCK argued that the Board failed to ensure that VA satisfied its duty to assist.  Specifically, VA relied solely on the March 2017 VA medical opinion despite there being evidence of record showing the onset of symptoms was between 1978 and 1995.  CCK also argued that symptoms did in fact manifest during the 7-year presumptive window for MS, citing a 2004 VA treatment record which noted the Veteran began experiencing cervical spine pain in 1978.  This was important to note because the Veteran has predominately cervical spine MS.

Court agrees with CCK securing a Remand

The Court agreed that the examiner failed to address why the cervical spine pain that manifested in 1978 was not a symptom of MS, and thus failed to adequately consider the medical history when providing the negative opinion.

The Court also concluded that the Board provided an inadequate statement of reasons or bases for relying on the March 2017 VA exam.  The examiner failed to adequately consider the medical history of the Veteran when providing a negative opinion. Accordingly, the Court vacated the Board’s September 28, 2017 denial and ordered the case to be remanded in order for the Board to explain its reliance on the March 2017 VA exam.

To read the Court’s full decision, click here.

About the Author

Bio photo of Robert Chisholm

Robert is a Founding Partner of CCK Law. His law practice focuses on representing disabled veterans in the United States Court of Appeals for Veterans Claims and before the Department of Veterans Affairs. As a veterans lawyer Robert has been representing disabled veterans since 1990. During his extensive career, Robert has successfully represented veterans before the Board of Veterans Appeals, Court of Appeals for Veterans Claims, and the United States Court of Appeals for the Federal Circuit.

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