Citation Nr: 0809718 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 06-06 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for Raynaud's Syndrome, claimed as secondary to service connected diabetes mellitus or complications thereof, such as coronary artery disease, peripheral neuropathy or diabetic nephropathy. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD B. Morton, Associate Counsel INTRODUCTION The veteran served on active duty from July 1964 to June 1968. This matter is before the Board of Veterans' Appeals (Board) from a March 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied service connection for Raynaud's Syndrome. The RO issued a notice of the decision in March 2005, and the veteran timely filed a Notice of Disagreement (NOD) in July 2005. Subsequently, in August 2005 the RO provided a Statement of the Case (SOC) and a Supplemental Statement of the Case (SSOC) in November 2005, and thereafter, in February 2006, the veteran timely filed a substantive appeal. The RO provided additional SSOCs in May 2006, May 2007 and September 2007. The Board notes that the veteran's claim for service connection for Raynaud's Syndrome, which was received by the RO in November 2004, specified secondary service connection. While the RO decision that was subsequently appealed denied service connection on direct and secondary bases, the veteran indicated in his NOD that he was only appealing the RO's denial of secondary service connection. The veteran did not request a hearing on this matter. FINDINGS OF FACT 1. VA has made all reasonable efforts to assist the veteran in the development of his claim and has notified him of the information and evidence necessary to substantiate the claim addressed in this decision; of the information VA failed to provide or failed to provide in a timely fashion, any resulting prejudice has been rebutted. 2. The veteran currently has Raynaud's Syndrome, but the competent medical evidence of record does not establish that the veteran's service connected diabetes mellitus, or complications thereof, to include coronary artery disease, peripheral neuropathy or diabetic nephropathy, caused or aggravated his Raynaud's Syndrome. CONCLUSION OF LAW Service connection for Raynaud's Syndrome, claimed as secondary to service connected diabetes mellitus or complications thereof, such as coronary artery disease, peripheral neuropathy or diabetic nephropathy, is not warranted. 38 U.S.C.A. §§ 5103, 5103A, 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The enactment of the VCAA, codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), significantly changed the law prior to the pendency of this claim. VA has issued final regulations to implement these statutory changes. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2005). The VCAA provisions include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and they redefine the obligations of VA with respect to the duty to assist the veteran with the claim. a. Duty to Notify VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. The Board concludes that the January 2005 letter sent to the veteran by the RO adequately apprised him of most of the information and evidence needed to substantiate the claim, and of the information it failed to provide, any presumed prejudice has been rebutted. In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. Sanders v. Nicholson, 487 F.3d 881, 886 (Fed. Cir. 2007) (outlining VCAA notice requirements); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (same). Additionally, during the pendency of this appeal, on March 3, 2006, the Court of Appeals for Veterans' Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (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 service-connection claim, 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 486. This notice must also inform the veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. The January 2005 letter from the RO satisfies most of these mandates. It informed the veteran about the type of evidence needed to support a direct service connection claim, namely, proof of: (a) an injury in military service or disease that began in or was made worse during military service, or an event in service causing injury or disease; (b) a current physical or mental disability; and (c) a relationship between the current disability and an injury, disease or event in service. This correspondence clearly disclosed VA's duty to obtain certain evidence for the veteran, such as medical records, employment records and records held by any Federal agency, provided the veteran gave consent and supplied enough information to enable their attainment. It made clear that although VA could assist the veteran in obtaining these records, he carried the ultimate burden of ensuring that VA received all such records. This letter additionally apprised the veteran that VA would schedule a medical examination or obtain a medical opinion for him if the RO determined such to be necessary to make a decision on the claim. It also specifically asked the veteran to provide VA with any other supporting evidence or information in his possession. The Board thus finds that the veteran was effectively informed to submit all relevant evidence in his possession, and that he received notice of the evidence needed to substantiate his claim, the avenues by which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. See Beverly, 19 Vet. App. at 403; see also Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the Dingess requirements, the veteran was provided with notice of what type of information and evidence was needed to substantiate the claim, but he was not provided with notice of the type of evidence necessary to establish a rating or effective date for the rating in the January 2005 letter. In addition, the January 2005 correspondence did not apprise the veteran of the type of evidence required to substantiate a secondary service connection claim, namely, the existence of: (a) a current disorder (Raynaud's Syndrome); (b) a service connected disability; and (c) competent medical opinion indicating that the service connected disability or disabilities either caused or aggravated the current, non-service connected disorder (Raynaud's Syndrome). Where such an error occurred, the Board must presume that the error was prejudicial, and VA bears the burden of rebutting said presumption. Sanders, 487 F.3d at 886, 889 (recognizing that "VCAA notice errors are reviewed under a prejudicial error rule" and holding that "all VCAA notice errors are presumed prejudicial and . . . VA has the burden of rebutting this presumption"); see also Mayfield v. Nicholson, 19 Vet. App. 103, 111-16 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In Sanders, the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial and that once an error is identified by the Veterans Court (Court of Appeals for Veterans Claims), the burden shifts to VA to demonstrate that the error was not prejudicial. The Federal Circuit reversed the Court of Appeals for Veterans Claims' holding that an appellant before the Court has the initial burden of demonstrating prejudice due to VA error involving: (1) providing notice of the parties' respective obligations to obtain the information and evidence necessary to substantiate the claim: (2) requesting that the claimant provide any pertinent evidence in the claimant's possession; and (3) failing to provide notice before a decision on the claim by the agency of original jurisdiction. An error "whether procedural or substantive, is prejudicial when [it] affects a substantial right so as to injure an interest that the statutory or regulatory provision involved was designed to protect such that the error affects 'the essential fairness of the [adjudication].'" Mayfield, supra, at 116; accord Sanders, supra, at 891 ("this opinion does not . . . change the rule that reversal requires the essential fairness of the adjudication to have been affected"). That is, "the key to determining whether an error is prejudicial is the effect of the error on the essential fairness of the adjudication." Mayfield, supra; accord Sanders, supra. "[A]n error is not prejudicial when [it] did not affect 'the essential fairness of the [adjudication],'" see Mayfield, supra, at 121, and non- prejudicial error may be proven by a showing that "the purpose of [VCAA] notice was not frustrated, e.g., by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the [defective] notice what was needed, or (3) that a benefit could not have been awarded as a matter of law." Sanders, supra, at 889; accord Dalton v. Nicholson, 21 Vet. App. 23, 30 (2007) (determining that no prejudicial error to veteran resulted in defective VCAA notice when the veteran, through his counsel, displayed actual knowledge of the information and evidence necessary to substantiate his claim). Accordingly, "there could be no prejudice if the purpose behind the notice has been satisfied . . . that is, affording a claimant a meaningful opportunity to participate effectively in the processing of [the] claim. . . ." Mayfield, supra, at 128. The Board determines that any presumed prejudice to the veteran as a result of the defective January 2005 VCAA letter has been rebutted. With respect to the lack of notice in the January 2005 letter relating to the Dingess elements regarding the assignment of effective dates and calculation of disability ratings, because the Board has rendered an unfavorable opinion in the instant case, denying service connection, any defect in such Dingess notice is moot. Christman v. American Cyanamid Co., 578 F. Supp. 63, 67 (D.W.Va. 1983) (noting that "mootness means that no actual controversy exists which is subject to judicial resolution"). Turning to the deficient VCAA notice relating to the elements of a secondary service connection claim, the Board finds that any presumed prejudice has been rebutted. In particular, the veteran, in correspondences received in January 2005 and January 2008, has demonstrated actual knowledge of the type of evidence needed to substantiate a secondary service connection claim. Dalton, 21 Vet. App. at 30; Veteran's January 2008 Letter ("I am indicating that . . . the DM2 aggravates the Raynaud[']s condition"); Veteran's January 2005 Letter ("I contend that [Raynaud's Syndrome] is very likely secondary to or aggravated by DM type 2, which has adverse effects on the vascular and neurological systems"). As such, any presumed prejudice has been rebutted. The Board also recognizes that, according to Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004), proper VCAA notice must "precede an initial unfavorable [agency of original jurisdiction (AOJ)] decision on a service-connection claim." VA did provide such notice to the veteran prior to the March 2005 RO decision that is the subject of this appeal in its January 2005 letter. Accordingly, the RO provided proper VCAA notice at the required time. b. Duty to Assist VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the veteran of its duty to assist in obtaining records and supportive evidence, and the veteran in fact did receive March 2005 and April 2006 VA medical opinions, which were thorough in nature and adequate for the purposes of deciding this claim. While the Board acknowledges that the veteran, in the letters received in April 2006 and January 2008, requested a new medical opinion because of his impression that the VA examiner (who had offered both medical opinions) "would not consider any of the numerous pages of information and specifically indicated to me that she had made up her mind and nothing I said or showed her would change her mind," the Board finds that the evidence and medical opinions of record, complete with adequate rationale, are sufficient to resolve this appeal. Therefore, VA has no further duty to provide an examination or opinion. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the veteran, and thus, no additional assistance or notification was required. The veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard, 4 Vet. App. at 392-94. II. Law & Regulations a. Secondary Service Connection Pursuant to 38 C.F.R. § 3.310(a), a "disability which is proximately due to or the result of a service-connected disease or injury shall be service connected." See Evans v. West, 12 Vet. App. 22, 29 (1998) (noting requirements for establishing service connection on a secondary basis). Thus, in order to establish a secondary service connection claim, the veteran must show: (1) the existence of a current (secondary) disability; (2) the existence of a service- connected disability; and (3) evidence that the service- connected disability proximately caused the secondary disability. 38 C.F.R. § 3.310(a). A veteran may also establish secondary service connection by demonstrating that his current (secondary) disability became aggravated or worsened by the already service-connected disease. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (holding that "when aggravation of a veteran's non-service-connected [secondary] condition is proximately due to or the result of a service- connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation"); see Libertine v. Brown 9 Vet. App. 521, 522 (1996) ("Additional disability resulting from the aggravation of a non-service-connected [secondary] condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a)"). If a veteran succeeds in establishing service connection for a secondary condition, "the secondary condition shall be considered a part of the original condition." 38 C.F.R. § 3.310(a). The Board acknowledges that VA recently amended 38 C.F.R. § 3.310, effective October 10, 2006. This amendment added the following provision to this regulation: "(b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service- connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice- connected disease or injury was aggravated by a service- connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level." 38 C.F.R. § 3.310 (2006). VA amended § 3.310 "because of a court decision [Allen v. Brown, 7 Vet. App. 439 (1995)] that clarified the circumstances under which a veteran may be compensated for an increase in the severity of an otherwise nonservice-connected [disability,] which is caused by aggravation from a service-connected [disability]." 71 Fed. Reg. 52744 (Sept. 7, 2006). Thus, "[t]he intended effect of this amendment is to conform VA regulations to the [Allen] court's decision." 71 Fed. Reg. 52744 (Sept. 7, 2006). Because this amendment is in the nature of a clarifying revision, rather than a substantive change, and because VA clearly expressed its intent to conform this regulation to already-existing case law, the Board will employ the same analysis as it has since Allen and consistent with the principles contained therein, as outlined above. b. Standard of Proof 38 U.S.C.A. § 5107 sets forth the standard of proof applied in decisions on claims for veterans' benefits. A veteran will receive the benefit of the doubt when an approximate balance of positive and negative evidence exists. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Thus, when a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Wells v. Principi, 18 Vet. App. 33, 36 (2004); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). A claim will be denied only if a preponderance of the evidence is against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). III. Analysis a. Factual Background The veteran has been diagnosed with Raynaud's Syndrome, and he is currently service connected for diabetes mellitus, type II; coronary artery disease; diabetic peripheral neuropathy of the bilateral upper and lower extremities; and diabetic nephropathy. In various statements, spanning January 2005 to January 2008, the veteran has alleged that his Raynaud's Syndrome was caused or aggravated by his service connected diabetes mellitus, or its complications for which he is also service connected. He has also submitted various medical articles from Internet sources, which discuss Raynaud's Syndrome as well as the effects of diabetes mellitus on the vascular system and body generally. In one article, dated October 2005, the author suggests that "people with certain . . . conditions such as diabetes . . . may be more at risk" for developing Raynaud's Syndrome. In another piece, dated April 2006, the commentator indicated that "[p]ersons who have preexisting narrowing of blood vessels due to cholesterol (arteriosclerosis) or persons with other conditions blocking the circulation . . . may get symptoms of Raynaud's phenomenon after only mild exposure to cool temperatures." A January 2008 article associates poor circulation and narrowing of the arteries with diabetes mellitus and further discusses the nature of Raynaud's Syndrome as involving an interference with circulation. In a March 2005 VA examination report, where the examiner had reviewed the claims file, the clinician opined that the veteran's "Raynaud's Disease is less likely as not (less than 50/50 probability) caused by, a result of, or aggravated by his Type 2 diabetes mellitus." She offered the following rationale for this conclusion: "clinical experience and reference text (lack of reference/research material showing correlation)." In a subsequent April 2006 VA examination report, the same clinician concluded that the veteran's Raynaud's Syndrome "is less likely as not (less than 50/50 probability) secondary to or aggravated by s/c CAD [coronary artery disease], Diabetic Peripheral Neuropathy or Diabetic Nephropathy." As a basis for this conclusion, the examiner cited to "clinical experience and consultation with neurologist at this facility." c. Discussion The Board finds that the evidence preponderates against the veteran's service connection claim. In particular, while the veteran currently has a diagnosis of Raynaud's Syndrome and is service connected for diabetes mellitus and complications thereof, to include coronary artery disease, peripheral neuropathy and diabetic nephropathy, the only competent medical opinion of record relating to whether a causal nexus exists between the Raynaud's Syndrome and any of the service connected disabilities weighs against the claim. That is, the VA examiner, both in her March 2005 and April 2006 medical reports, concluded, based on her experience as a medical professional, consultation with neurologists, and the lack of medical literature supporting a causal nexus, that the veteran's service connected diabetes mellitus and complications thereof, such as coronary artery disease, peripheral neuropathy and diabetic nephropathy, neither caused nor aggravated his Raynaud's disease. As such, the Board must deny this claim. The Board acknowledges that the veteran has submitted numerous articles from Internet sources, which suggest generally that some correlation between diabetes mellitus or complications thereof and Raynaud's Syndrome may exist. This evidence alone, however, does not establish the causal medical nexus needed to prove his service connection claim. The Court of Appeals for Veterans' Claims has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Sacks v. West, 11 Vet. App. 314 (1998) (emphasis added); see also Wallin v. West, 11 Vet. App. 509, 513-14 (1998) (medical treatise evidence discussed generic relationships with a degree of certainty to establish a plausible causality of nexus); Mattern v. West, 12 Vet. App. 222, 228 (1999). In this case, however, the text evidence submitted by the veteran is not accompanied by any supportive medical opinion from a medical professional. Additionally, as it is generic in nature, it fails to demonstrate the relationship between this veteran's Raynaud's Syndrome and his service connected diabetes mellitus or complications thereof. For these reasons, the Board must find that the text evidence submitted by the veteran does not contain the specificity to constitute competent evidence of the claimed medical nexus. Sacks, 11 Vet. App. at 317 (citing Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996)); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996). The Board also acknowledges the veteran's contention about the etiology of his Raynaud's Syndrome and how his service connected disabilities have aggravated said disorder. As a layperson, however, he is not competent to provide a medical opinion about causation or aggravation. Epps v. Brown, 9 Vet. App. 341, 344 (1996); Espititu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). While the veteran is certainly competent to describe symptoms, without an indication in the record that he has had the relevant medical training, he is not competent to provide an opinion on whether any etiological relationship exists between his Raynaud's Syndrome and his service connected disabilities. As a result, his own assertions are not probative to the critical issue in this case of whether the veteran's diabetes mellitus or any complications thereof have caused or aggravated his Raynaud's Syndrome. IV. Conclusion For the reasons stated above, the Board finds that service connection is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply to the instant case. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert, 1 Vet. App. at 56. ORDER Service connection for Raynaud's Syndrome, claimed as secondary to service connected diabetes mellitus or complications thereof, such as coronary artery disease, peripheral neuropathy or diabetic nephropathy, is denied. ____________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs