**UNITED STATES COURT OF VETERANS APPEALS**

No. 91-2211

[William O. Obert, Appellant]{.smallcaps},

[v.]{.smallcaps}

[Jesse Brown,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Appellee\'s Motion for Summary Affirmance

and

On Appeal from the Board of Veterans\' Appeals

(Decided April 22, 1993 )

*Patrick T. Tierney, Esq.,* was on the brief for appellant.

*James A. Endicott, Jr.,* General Counsel, *David T. Landers*, Acting
Assistant General Counsel, *Andrew J. Mullen*, Deputy Assistant General
Counsel, and *Ralph G. Davis* were on the pleadings for appellee.

Before MANKIN, HOLDAWAY, and IVERS, *Associate Judges*.

HOLDAWAY, *Associate Judge*: Appellant, William O. Obert, appeals from
an August 30, 1991, decision of the Board of Veterans\' Appeals (BVA or
Board) which denied service connection for multiple sclerosis (MS). The
Board found that MS was not shown to have been present during service,
nor to have manifested to a compensable degree within seven years
following service. Furthermore, MS was not definitively diagnosed until
1987, almost 29 years following appellant\'s separation from service. In
his appeal, appellant contends that the BVA erred in finding that MS was
not shown during service, or within seven years following service. The
Secretary of Veterans Affairs (Secretary) has filed a motion for summary
affirmance. The Court will remand the matter for further adjudication.

**I. Background**

Appellant served in the Air Force from June 1955 to December 1958.
Appellant\'s military service records were apparently destroyed in a
fire at the Personnel Records Center, St. Louis, Missouri.

Appellant testified that the onset of his symptoms occurred in 1956. He
lost consciousness during a training class. He regained consciousness
while in an ambulance en route to the hospital. Instead of being taken
to the hospital, he requested that he be taken to see a dentist because
he had a terrible toothache. The dentist could not find evidence of a
toothache, and shortly thereafter, appellant\'s pain subsided. Appellant
testified that he did not have any similar symptoms or incidents while
he was in the service.

Following his discharge from service, appellant was employed as an air
traffic controller. Appellant testified that in the fall of 1960 he
noticed a change in his abilities which prevented him from becoming
certified by the Chicago Airway Traffic Control Center. A January 31,
1963, entry in the medical records indicates that appellant \"continues
to have numbness and pricking sensations in left hand associated
\[with\] aches in post. lower neck about C7 - worse on flexion of
hand.\" There is no diagnosis in the record associated with this entry.

Due to a decrease in his abilities, appellant requested a voluntary
demotion at his job on August 27, 1963. On September 10, 1963, appellant
reported pain in the left inguinal area, and pain just before emptying
his bladder. Appellant\'s demotion was granted on October 16, 1963.
Shortly thereafter, on November 4, 1963, appellant was placed on
extended sick leave. It was during this sick leave in 1963, that
appellant claims he was seen by Dr. Grimm. At this time, his symptoms
included headaches, near total loss of eyesight, vertigo, high fever,
and speech difficulty. Appellant stated that Dr. Grimm diagnosed him
with encephalitis or meningitis with sight loss. He returned to work on
November 12, 1963. On November 18, 1963, appellant obtained a report
from his doctor certifying that his vision had returned to 20/20. On
February 25, 1964, appellant again requested a voluntary demotion.

On April 21, 1967, he complained of tenderness over his right eye. An
October 21, 1968, entry in the medical records noted that appellant\'s
\"right eye sight failed for 7-10 days - less distinction of edges,\"
and that his vision was \"foggy,\" with a feeling of \"fullness\" in the
right eye. In the same entry, it was noted that appellant complained of
a nagging backache on and off for the past year.

On October 23, 1968, appellant was seen for blurred vision in his right
eye. The same entry noted appellant had a history of blurred vision in
his left eye in 1963, which gradually cleared after about six weeks. An
entry on October 30, 1968, noted some decreased vision in the right eye
on exertion. The right pupil was three millimeters larger than the left
pupil.

On July 26, 1969, he complained of numbness in his lower left forearm.
The numbness started suddenly. There was no pain at first, but then it
gradually increased. Appellant also reported mild headaches and
decreased vision in his right eye.

On February 16, 1971, appellant reported trouble with his left eye. He
was experiencing \"foggy\" vision.

In 1987, appellant was diagnosed with \"probable multiple sclerosis\" by
Dr. Webster. Appellant had been seen by Dr. Webster since the early
1980s, but was not diagnosed until 1987. Dr. Webster subsequently
changed the diagnosis to \"definite multiple sclerosis.\" While Dr.
Webster does not state when the diagnosis changed, it was first noted in
a letter dated October 31, 1989.

Appellant filed his application for compensation for service connection
for MS in May 1989. Among the evidence submitted were two letters. The
first one was from Dr. Peterson, dated August 15, 1989. Dr. Peterson
treated appellant for a period of years beginning in October 1964, and
ending in February 1972. In his August 1989 letter, Dr. Peterson stated
that he had reviewed appellant\'s treatment records and he noted, \". .
.\[A\]s I look back on some of the problems and complaints that you had
in those early years, I would think that a good case could be made for
early symptoms of multiple sclerosis.\" The second letter was from Dr.
Webster, dated April 26, 1991. Dr. Webster stated, \". . . \[T\]he
patient may have been having some symptoms of his multiple sclerosis for
many years prior to the date of diagnosis.\" The evidence submitted
included testimony by appellant and his wife at a personal hearing held
in December 1990.

On August 30, 1991, the BVA denied service connection for MS. *William
O. Obert*, BVA 91-\_\_\_\_\_ (Aug. 30, 1991). The BVA found that MS was
not definitively diagnosed until 29 years after service. The BVA further
found that \"a consistent pattern of pathologic signs associated with
multiple sclerosis were not shown during service or manifested to a
compensable degree within 7 years of the veteran\'s discharge from
service.\" The letters from Drs. Peterson and Webster were found to be
\". . . not, by themselves, sufficiently persuasive to entitle the
veteran to service connection for multiple sclerosis.\" The BVA noted
that there was no indication in the medical records that MS was even
suspected by the treating physicians in 1963, when appellant initially
experienced symptoms of blurred vision or numbness in his left arm, nor
in October 1963 when he was diagnosed with encephalitis/meningitis.

A timely appeal to this Court followed.

**II. Analysis**

**A.**

As a preliminary matter, the Court will address the propriety of
attaching an excerpt from a medical treatise as an appendix to
appellant\'s brief. Extensive factual argument in the brief was based on
this treatise. The treatise was \"new\" evidence; it was not contained
in the record before the Board. This Court is precluded by statute from
considering any material which was not contained in the record before
the Board. 38 U.S.C.A. § 7252(b) (West 1991); *Rogozinski v. Derwinski*,
1 Vet.App. 19 (1990). If appellant wishes to introduce new evidence that
he has developed in the course of his appeal, he may place it in the
record only by requesting that the primary finder of fact, namely the
Board, reconsider its decision, attaching the \"new\" evidence to the
request, or, in the alternative, appellant could use the \"new\"
evidence to attempt to reopen his claim at the agency of original
jurisdiction (regional office). This Court is a court of review that may
consider only evidence that was in the record and before the Board in
its adjudication. By attempting to introduce new medical evidence before
the Court, and then arguing for reversal on the basis of that evidence,
appellant was, in effect, placing this Court in the position of finding
medical facts. That is not our function.

Counsel for the Secretary has a responsibility to protect the record. He
should have made a motion to have the appendix stricken from the record
on appeal. In this case, the Court, sua sponte, strikes the appendix
from the brief. No consideration whatsoever will be given to this
material.

**B.**

Pursuant to 38 U.S.C.A. § 5107(a) (West 1991), a person who submits a
claim

> . . . for benefits under a law administered by the Secretary shall
> have the burden of submitting evidence sufficient to justify a belief
> by a fair and impartial individual that the claim is well grounded.

A well-grounded claim is \"a plausible claim, one which is meritorious
on its own or capable of substantiation.\" *Murphy v. Derwinski*, 1
Vet.App. 78, 81 (1990).

Appellant has submitted a well-grounded claim. In his letter dated April
26, 1991, Dr. Webster stated that, \". . . \[T\]he patient *may* have
been having some symptoms of his multiple sclerosis for many years prior
to the date of diagnosis.\" (Emphasis added.) Of course, as appellant
\"may\" have been showing symptoms, the implication is he \"may not
have\" been showing symptoms. Dr. Webster\'s statement is, therefore,
speculative. *See Tirpak v. Derwinski*, 2 Vet.App. 609, 611 (1992).
However, unlike *Tirpak*, where the only evidence supporting the claim
was one letter from a doctor indicating that the veteran\'s death \"*may
or may not*\" have been averted if medical personnel could have
effectively intubated the veteran, in the present case, there is a
second letter, from Dr. Peterson, who stated that after looking back at
appellant\'s treatment records, he \"would think that a *good case*
could be made for early symptoms of multiple sclerosis.\" (Emphasis
added.) This second opinion also contains within it seeds of doubt, but
it is somewhat less speculative than the first one. Taken in conjunction
with Dr. Webster\'s statement, it is sufficient to present a minimally
well-grounded claim.

The presentation of a well-grounded claim triggers a necessity to seek
*medical evidence* either to verify or not verify the claim. The Board
may not simply reject the medical opinions given, equivocal though they
may be, by using its own medical judgment. *Colvin v. Derwinski*, 1
Vet.App. 171, 175 (1991).

While the medical evidence submitted by appellant was sufficient to
establish a claim, it was of such equivocal nature that the Board was
correct in expressing doubts as to its sufficiency, and thus not
approving a claim based on such speculative opinions. However, there was
a duty to further develop the case and seek further medical evidence to
be placed in the record that would either support or repudiate the
evidence from Drs. Webster or Peterson.

The Secretary\'s motion is DENIED, and the matter is REMANDED to the
Board for adjudication consistent with this opinion.