Citation Nr: 0730858 Decision Date: 09/28/07 Archive Date: 10/09/07 DOCKET NO. 03-22 014 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for systemic lupus erythematosis. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD A. W. Harley, Associate Counsel INTRODUCTION The veteran had active service from October 1976 through February 1977, and from August 1979 to March 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. FINDINGS OF FACT There is no competent medical evidence showing that the veteran's currently diagnosed systemic lupus erythematosis manifested during the veteran's active service. CONCLUSION OF LAW The criteria for service connection for systemic lupus erythematosis are not met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303(a), (d), 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran is seeking service connection for systemic lupus erythematosis. For service connection, the record must contain (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." See Pond v. West, 12 Vet. App. 341, 346 (1999). In other words, entitlement to service connection for a particular disability requires evidence of the existence of a current disability and evidence that the disability resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). In this case, the veteran clearly meets the first element for service connection, medical evidence of a current disability. The record shows that he was first diagnosed with lupus in November 1997. See records of Rheumatology Associates of North Alabama. The treatment is continuous since that time. Most recently, the March 2007 VA examination report shows a current diagnosis of systemic lupus erythematosus. Thus, it is clearly established that the veteran has a currently diagnosed disability. First, the Board will address the question of whether the current lupus diagnosis can be causally connected to a disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). The veteran claims that his lupus symptoms initially manifested during hospital treatment in service in 1976. See November 2002 claim. The veteran's service medical records were reviewed in their entirety. The veteran was treated in November 1976 for pain, edema, and redness in the inner aspect of the right ankle and ultimately diagnosed with cellulitis in the right foot. In December 1976, he had an upper respiratory infection. Several months later he had an exit exam for his first period of service, which showed no signs of irregularity. Following service, the first evidence of lupus appears in November 1997. See records of Rheumatology Associates of North Alabama. As stated above, the veteran was diagnosed at that time. The question becomes whether the diagnosis can be associated with any of the symptoms in service, such that lupus, while not diagnosed, may have initially manifested in service. Service connection may 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). While the record contains much evidence showing the veteran's current treatment, it is limited as to a discussion of a medical nexus between the current diagnosis and any symptom in service. The veteran submitted a November 2005 statement from his private physician. The doctor confirmed the diagnosis of systemic lupus erythematosus and stated that he had reviewed the veteran's service medical records in an effort to determine whether there is evidence of lupus present at the time of the veteran's military service. The doctor specifically stated that "[d]espite the number of pages, there really is a paucity of objective data contained here. The only significant laboratory value is a negative RPR from 02/10/77. There is a paucity of descriptive text from physicians. I do not find any detailed joint examinations nor detailed descriptions of any skin lesions or any urinalysis." While this opinion does not specifically rule out a connection, it is neither supportive of the veteran's claim that his lupus is connected to service. It essentially states that there is no evidence to support a conclusion that there is a medical nexus to be made. In March 2007, the veteran was afforded a VA examination on this issue. The VA examiner reviewed the claims folder and following physical examination and diagnosis, rendered a very unclear opinion. The examiner stated that "it is likely the etiology of his lupus is through this connected because usually the etiology of lupus is of autoimmune origin." Presumably due to the unclear nature of the March 2007 opinion, the RO obtained a VA medical opinion addendum in June 2007. At that time the same examiner rendered a much more clear opinion. After again summarizing the history of the veteran's lupus, he stated that "the veteran's lupus is less likely as not caused by, the result of or incurred during his military service. Rationale: He was diagnosed with lupus in 1997, which was 16 years after his discharge from the military. There is no evidence that he had lupus or symptoms of lupus during his military service in his C- File." The record is otherwise devoid of evidence for or against the notion that the veteran's lupus is connected to his active service. The only evidence is the private opinion that is entirely neutral, and the VA opinion that is clearly not medical evidence of a nexus. The Board recognizes that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. However, in this case, the preponderance of the evidence is against the veteran's claim because there is no competent medical evidence to show that the veteran's current disability manifested in service. Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and systemic lupus erythematosis becomes manifest to a degree of 10 percent within one year from the 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. There is no indication that systemic lupus erythematosis was present in service or to a compensable degree within one year of separation from service. As a consequence, there is no objective indication that service connection on either a direct or presumptive basis has been established. While the veteran has expressed his belief that systemic lupus erythematosis is related to service, he is not competent as a layperson, to render an opinion as to medical causation or etiology. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The veteran's claim is be denied. Duties to Notify and Assist VA fulfilled its duties to notify and assist the veteran in the development of his claim for entitlement to service connection for systemic lupus erythematosis. Sufficient evidence is available to reach a decision and the veteran is not prejudiced by appellate review at this time. VA sent the veteran several letters informing him of the evidence necessary to establish entitlement to service connection. See VA letters to the veteran dated June 2002, February 2003, October 2003, February 2006, April 2006, and February 2007. The veteran was notified of what was necessary to establish his claim, what evidence he was expected to provide, and what VA would obtain on his behalf. He was also asked to send VA any current medical evidence in his possession, and notified that it was his responsibility to ensure that VA received all relevant evidence in support of his claim. These letters satisfied the requirements of 38 C.F.R. § 3.159(b)(1) (2007). The veteran was also informed of the type of evidence necessary to establish an effective date and a disability rating, as is required under Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA's duty to notify was met in this case. Any defect with respect to the timing of the notice requirement was harmless error. The veteran was furnished content-complying notice and proper subsequent VA process, thus curing any error in the timing. Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist the veteran in substantiating his claim under 38 C.F.R. § 3.159(c), (d) (2006). Here, the veteran's statements, his service medical records, and VA and private treatment records have been associated with the claims folder. The veteran requested, but then cancelled two Board hearings, so no current hearing transcript is of record. He was afforded a VA examination and medical opinion and the reports are of record. The veteran has been afforded several opportunities, but has not notified VA of any additional available relevant records with regard to his claim. VA has done everything reasonably possible to assist the veteran. The matter has been twice remanded for additional development. Another remand for further development of this claim would serve no useful purpose. VA has satisfied its duties to notify and assist the veteran and further development is not warranted. ORDER Entitlement to service connection for systemic lupus erythematosis is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs