Citation Nr: 0624282 Decision Date: 08/10/06 Archive Date: 08/18/06 DOCKET NO. 04-12 028A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a salivary gland disorder. 2. Entitlement to service connection for Sjogren's syndrome. 3. Entitlement to service connection for an eye disorder. 4. Entitlement to service connection for diabetes mellitus. 5. Entitlement to service connection for a psychiatric disorder. 6. Entitlement to service connection for muscle spasms. REPRESENTATION Appellant represented by: Mark R. Lippman, Esq. ATTORNEY FOR THE BOARD H. E. Costas, Associate Counsel INTRODUCTION The veteran served on active duty from March 1965 to February 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 1996 and January 2003 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The issues of entitlement to service connection for an eye disorder, diabetes mellitus, and muscle spasms are addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A salivary gland disorder, Sjogren's syndrome, and a psychiatric disorder were not clinically evident in service or for years thereafter. 2. A salivary gland disorder, Sjogren's syndrome, and a psychiatric disorder are not causally related to the veteran's active service, any incident therein, or any service-connected disability, including sarcoidosis. CONCLUSION OF LAW A salivary gland disorder, Sjogren's syndrome, and a psychiatric disorder were not incurred during active service, nor is any such disability causally related to or aggravated by any service-connected disability. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107 (West 2002); 38 C.F.R. 3.303, 3.304, 3.306, 3.310 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126, and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), are examined. First, VA has a duty to indicate which portion of information should be provided by the claimant, and which portion VA will try to obtain on the claimant's behalf, which was accomplished by a May 2002 letter. During the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a claim of service connection, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 484. Despite any inadequate notice provided to the appellant, no prejudice results in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). Particularly, the veteran has been afforded the information necessary to advance any contention by means of the May 2002 letter. As such, the veteran was aware and effectively notified of information and evidence needed to substantiate and complete his claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Because a preponderance of the evidence is against the claim, any potentially contested issue regarding a downstream element is rendered moot. Again, the veteran is not prejudiced by the Board's consideration of the pending issue. The Court in Pelegrini v. Principi, 18 Vet. App. 112 (2004), continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. In this case, the appellant received sufficient VCAA notice given that his claims had been instituted pre-VCAA, and the record contains a January 2003 and April 2004 supplemental statements of the case following the May 2002 letter. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006) (holding that a timing error can be cured when VA employs proper subsequent process). It is further noted that in order to be consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), a VCAA notice must also request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim; this "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). See Pelegrini, 18 Vet. App. at 121. In this case, the principle underlying the "fourth element" has been fulfilled by the May 2002 letter. Next, VCAA requires VA to assist the claimant in obtaining evidence necessary to substantiate a claim, 38 C.F.R. § 3.159(c), which includes providing a medical examination when such is necessary to make a decision on the claim. The record contains VA outpatient reports, private medical records and statements from The Pulmonary Disease Institute and Craig N. Bash, M.D.; and VA examination reports dated in January 1997 and August 1997. Notably, the veteran has not identified any further outstanding and relevant evidence in response to the May 2002 VCAA letter. As to any duty to provide an examination and/or seek a medical opinion for the issues of entitlement to service connection for a salivary gland disorder, a psychiatric disorder and muscle spasms, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's act of service; but does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board finds that a medical examination is not required in this case. The record contains no credible, competent evidence attributing a salivary gland disorder, a psychiatric disorder and muscle spasms to his service- connected sarcoidosis. Under these circumstances, there is no duty to provide an examination or opinion with regard to the claim on appeal. Id.; see also Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). Based on the foregoing, VA satisfied its duties to the veteran. Laws and Regulations Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre- existing injury or disease in the line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2005). Where a veteran served 90 days or more during a period of war and certain chronic diseases, including arthritis, peptic ulcer disease, organic diseases of the nervous system, and cardiovascular-renal disease, become manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309 (2005). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2005). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2005). Moreover, the Court has held that where a service-connected disability causes an increase in, but is not the proximate cause of, a nonservice-connected disability, the veteran is entitled to service connection for that incremental increase in severity attributable to the service- connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Analysis The veteran alleges entitlement to a salivary gland disorder, Sjogren's syndrome, and a psychiatric disorder. He contends that these disorders are attributable to his service- connected sarcoidosis. In January 1996, the RO held that service connection was not warranted for any of the aforementioned disorders because the claims were not well grounded. In January 2003, the RO revisited the matter under the guidelines of the VCAA and confirmed and continued the denial of service connection for a salivary gland disorder, Sjogren's syndrome, and a psychiatric disorder as secondary to sarcoidosis. Upon review of the evidence of record the Board finds that service connection is not warranted for a salivary gland disorder, Sjogren's syndrome, a psychiatric disorder or muscle spasms. Other than the veteran's lay contentions, the record contains no indication that any current salivary gland disorder, Sjogren's syndrome, or psychiatric disorder is causally related to his active service, any incident therein, or any service-connected disability. The veteran's service medical records are silent regarding any complaint or finding of for a salivary gland disorder, Sjogren's syndrome, a psychiatric disorder and muscle spasms. In fact, at his December 1966 military separation medical examination, clinical evaluation of the mouth and throat, and psychiatric system were normal. Moreover, on a report of medical history, the veteran specifically denied depression or excessive worry, and nervous trouble of any sort. Likewise, the Board observes that the post-service medical evidence of record is negative for any notations, complaints or findings of a salivary gland disorder, Sjogren's syndrome, or a psychiatric disorder for years after service separation. Indeed, when the veteran was hospitalized in September 1968 due to sarcoidosis, there were no complaints or findings of a salivary gland disorder, Sjogren's syndrome, and a psychiatric disorder. Moreover, there is no indication, nor does the veteran contend, that the competent medical evidence of record contains any indication that the claimed a salivary gland disorder, Sjogren's syndrome, and a psychiatric disorder are related to his active service or any incident therein. In view of the foregoing, the Board finds that service connection for these disabilities on a direct or presumptive basis is not warranted. See 38 C.F.R. § 3.303, 3.307, 3.309 (2005). Rather, the veteran contends that service connection for these disabilities is warranted on a secondary basis. He argues that his claimed salivary gland disorder, Sjogren's syndrome, and psychiatric disorder are due to his service- connected sarcoidosis. See 38 C.F.R. § 3.310. After carefully considering the evidence of record, however, the Board finds that the preponderance of the evidence is against the claims of service connection for a salivary gland disorder, Sjogren's syndrome, a psychiatric disorder and muscle spasms, on a secondary basis. Although the veteran has presented with complaints and received treatment for a salivary gland disorder and psychiatric disorder, there is no indication that these are attributable to his service-connected sarcoidosis. The veteran's assertions regarding his claimed disabilities, standing alone, do not provide a basis on which to grant his claim of service connection for a salivary gland disorder, Sjogren's syndrome, and a psychiatric disorder secondary to sarcoidosis. As a layperson the veteran is not competent to provide an opinion requiring medical knowledge, such as a question of a medical diagnosis, causation or etiology. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In any event, the record contains absolutely no probative evidence supporting his theory of entitlement. The Board has carefully considered the excerpts from the medical articles submitted by the veteran regarding sarcoidosis, as well as the letter from the American Lung Association. This evidence, however, provides only generic information regarding sarcoidosis and is, thus, of limited probative value. See e.g., Sacks v. West, 11 Vet. App. 314, 317 (1998); Matteren v. West, 12 Vet. App. 222 (1999). In conclusion, service connection is not warranted for a salivary gland disorder and a psychiatric disorder. Regarding the Sjogren's syndrome, the veteran has not received a confirmed diagnosis of Sjogren's syndrome, the first requirement for establishing service connection. 38 C.F.R. § 3.304(f). See Brammer v. Derwinski, 3 Vet. App. 223 (1992) (a service connection claim requires evidence of a current disability). In January 1997, although a VA examiner noted a long-standing history of polyarthropathy and myalgias, which were symptoms suggestive of Sjogren's syndrome, he emphasized that the veteran's normal sedimentation rate argued against an active current inflammatory process. In August 1997, upon review of the claims folder, the examiner opined that there was no evidence to warrant a diagnosis of Sjogren's syndrome or any other immune disorder. The Board acknowledges Dr. Bash's March 2001 report, wherein he opined that the results of the veteran's ALB tests concerning Sjogren's syndrome may not have been accurate. Although he suggested that a repeat submandibular gland biopsy would be useful in confirming the diagnosis, he made no assertion as to whether a when a confirmed diagnosis of Sjogren's syndrome was received whether it would be attributable to sarcoidosis. Accordingly, the Board finds that the record lacks competent and probative evidence of a diagnosis of Sjogren's syndrome. If there is no current diagnosis, service connection cannot be established. Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. In summary, the Board finds that the veteran's claimed salivary gland disorder, Sjogren's syndrome, and psychiatric disorder were not shown in service or for years thereafter, and that probative evidence of record indicates that these claimed disabilities are not related to or aggravated by his active service, any incident therein, or any service- connected disability. Thus, the Board finds that the preponderance of the evidence is against the veteran's claims of service connection for salivary gland disorder, Sjogren's syndrome, and a psychiatric disorder. ORDER Entitlement to service connection for a salivary gland disorder, Sjogren's syndrome, and a psychiatric disorder is denied. REMAND The veteran alleges entitlement to service connection for an eye disorder and diabetes mellitus. Optic nerve atrophy was noted in July 1991. The veteran was first suspected to have glaucoma in May 1992. The veteran was diagnosed as having diabetes mellitus in March 1994. In July 1999, the veteran was found to have early cataracts. In a February 1995 VA examination report, the examiner opined that diabetes mellitus was common in normal population and that there was no relationship to the veteran's service- connected sarcoidosis. He noted that the veteran was never diagnosed as having or suspected to have diabetes insipidus, which is occasionally related to sarcoidosis. In March 2001, Dr. Bash opined that it was likely that the veteran's sarcoidosis-related SI joint arthritis was the primary cause of spasm. In addition, he opined that the veteran's cataracts were caused by his prolonged treatment with steroids for sarcoidosis because he did not have any other risk factors to explain the development of cataracts at a relatively young age. Additionally, he opined that it was likely that the veteran's diabetes was caused by his prolonged treatment with steroids for sarcoidosis because he did not have other risk factors that fully explained his development of diabetes. In light of this new independent medical opinion, the Board finds that a remand is necessary in order to secure a medical opinion as to the relationship, if any, between the veteran's current eye disorder, diabetes mellitus, and muscle spasm and the veteran's service- connected sarcoidosis. Accordingly, the case is REMANDED for the following action: 1. The RO should schedule the veteran for the appropriate examinations. All indicated tests should be accomplished. The claims folder and a copy of this REMAND must be made available to and be reviewed by the examiner prior to the examination. The examiner should review the claims folder, including the records during and after service, and provide opinions concerning the nature and etiology of any current eye disorder, to include cataracts and glaucoma, diabetes mellitus, and muscle spasm. The examiner should be asked to render an opinion as to whether it is at least as likely as not (i.e. a 50% or greater likelihood) that any current eye disorder is caused or worsened by his period of service, to include his service-connected sarcoidosis. In addition, the examiner should be asked to provide an opinion as to whether it is at least as likely as not (i.e. a 50 percent or greater likelihood) that the veteran's diabetes mellitus was caused or worsened by his period of service, to include his service-connected sarcoidosis. Finally, the examiner should provide an opinion as to whether it is at least as likely as not (i.e. a 50 percent or greater likelihood) that the veteran's muscle spasms were caused or worsened by his period of service, to include his service-connected sarcoidosis. The examination reports should include a complete rationale for all opinions rendered. 2. After conducting any additional indicated development, the RO should again review the record. If the benefits sought on appeal remain denied, the veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). ______________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs