Citation Nr: 0810136	
Decision Date: 03/27/08    Archive Date: 04/09/08

DOCKET NO.  06-02 988	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, 
California


THE ISSUES

1.  Entitlement to service connection for disability due to 
allergies to drugs.

2.  Entitlement to service connection for an allergy to 
nickel.

3.  Evaluation of low back disability, currently rated as 20 
percent disabling.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

J. Barone, Counsel

INTRODUCTION

The veteran had active service from June 1974 to November 
1976.

This matter comes before the Board of Veterans' Appeals 
(Board) from a rating decision of the Department of Veterans 
Affairs (VA) Regional Office (RO) in Oakland, California.

The veteran testified before the undersigned Veterans Law 
Judge at the RO in July 2007.  A transcript of her hearing 
has been associated with the record.

The issue of entitlement to a higher evaluation for low back 
disability is 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 disability as the result of allergic reactions to drugs 
was not manifest in service, and there is no evidence of a 
current disability as the result of allergies to drugs.

2.  Allergic reaction to nickel was first manifest during 
service.


CONCLUSIONS OF LAW

1.  A disability as the result of allergic reactions to drugs 
was not incurred in or aggravated by service.  38 U.S.C.A. §§ 
1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.380 (2007).

2.  Allergic reaction to nickel was incurred during wartime 
service.  38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. §§ 
3.303, 3.380 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his representative of any information, and any 
medical or lay evidence, that is necessary to substantiate 
the claim.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 
38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. 
App. 183 (2002).  Proper VCAA notice must inform the claimant 
of any information and evidence not of record (1) that is 
necessary to substantiate the claim; (2) that VA will seek to 
provide; and (3) that the claimant is expected to provide; 
and (4) must ask the claimant to provide any evidence in his 
possession that pertains to the claim, in accordance with 
38 C.F.R. § 3.159(b)(1).  VCAA notice should be provided to a 
claimant before the initial unfavorable RO decision on a 
claim.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004); 
Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on 
other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

The Board also notes that during the pendency of this appeal, 
on March 3, 2006, 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 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.  

In the present case, the veteran's claim was received after 
the enactment of the VCAA.  

An April 2004 letter discussed the evidence necessary to 
establish service connection.  It listed the evidence of 
record and told the veteran how VA would assist her in 
obtaining additional evidence.  She was asked to identify the 
dates and places of treatment for allergies in service, as 
well as the dates and locations of treatment since service.  

A March 2006 letter provided information regarding the manner 
in which VA determines disability ratings and effective 
dates.  

The Board finds that any defect with respect to the timing of 
the VCAA notice requirement was harmless error.  Although the 
notices were provided to the veteran after the initial 
adjudication, the veteran has not been prejudiced thereby.  
The content of the notice provided to the veteran fully 
complied with the requirements of 38 U.S.C.A. § 5103(a) and 
38 C.F.R. § 3.159(b) regarding VA's duty to notify.  Not only 
has the veteran been provided with every opportunity to 
submit evidence and argument in support of her claim and to 
respond to VA notices, but the actions taken by VA have 
essentially cured the error in the timing of notice.  
Further, the Board finds that the purpose behind the notice 
requirement has been satisfied because the veteran has been 
afforded a meaningful opportunity to participate effectively 
in the processing of her claim. 

As the Federal Circuit Court has stated, it is not required 
"that VCAA notification must always be contained in a single 
communication from the VA."  Mayfield, supra, 444 F.3d at 
1333.  

With respect to VA's duty to assist, the Board observes that 
identified treatment records have been obtained and 
associated with the record.  The veteran testified before the 
undersigned in July 2007.  At that time, the undersigned 
agreed to hold the record open so that the veteran and her 
representative could obtain and submit records from a private 
provider.  Neither the veteran nor her representative has 
identified any additional evidence or information which could 
be obtained to substantiate the claim.  The Board is also 
unaware of any such outstanding evidence or information.  
Further, a VA medical opinion is not necessary because, as 
illustrated below, the record lacks evidence demonstrating a 
current disability, or persistent or recurrent symptoms of a 
disability as the result of allergies to medications.  See 38 
C.F.R. § 3.159(c)(4); see also McClendon v. Nicholson, 20 
Vet. App. 79, 84 (2006).  Therefore, the Board is also 
satisfied that the RO has complied with the duty to assist 
requirements of the VCAA and the implementing regulations.  

The Board also notes that the veteran has submitted a July 
2007 report of an allergic reaction in the form of dermatitis 
to nickel.  Therefore, the evidence is sufficient to make a 
decision with regard to the issue of service connection for 
allergic reaction to nickel.  A VA examination would merely 
confirm a fact that the Board has already accepted.

For the foregoing reasons, it is not prejudicial to the 
appellant for the Board to proceed to a final decision in 
this appeal.

Analysis

Initially, the Board notes that the evidence does not support 
a finding that the veteran engaged in combat.  Thus, she is 
not entitled to application of the provisions of 38 U.S.C.A. 
§ 1154(b) (West 2002).

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 preexisting injury 
suffered or disease contracted in the line of duty, in the 
active military, naval, or air service.  38 U.S.C.A. §§ 1110, 
1131; 38 C.F.R. § 3.303(a).

Service connection may also be granted for any disease 
initially 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).

Service incurrence or aggravation of organic disease of the 
nervous system may be presumed if it is manifested to a 
compensable degree within a year of the veteran's discharge 
from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 
3.307, 3.309.

Direct service connection may not be granted without evidence 
of a current disability, evidence of in-service incurrence or 
aggravation of a disease or injury, and evidence of a nexus 
between the claimed in-service disease or injury and the 
present disease or injury.  See Caluza v. Brown, 7 Vet. App. 
498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)].

Seasonal and other acute allergic manifestations subsiding on 
the absence or removal of the allergen are generally to be 
regarded as acute diseases, healing without residuals.  The 
determination as to service incurrence or aggravation must be 
on the whole evidentiary showing.  38 C.F.R. § 3.380 (2007).

When there is an approximate balance of positive and negative 
evidence regarding the merits of an issue material to the 
determination of the matter, the benefit of the doubt in 
resolving each such issue shall be given to the claimant.  38 
U.S.C.A. § 5107(b) (West 2002).

The veteran's service medical records show that she was found 
to have an allergic reaction to metal in July 1974.  

In December 1976 she suffered from an adverse reaction to 
prescribed medication.  The medications were discontinued, 
and the veteran was noted to be doing well on follow-up the 
next day.

On discharge examination in October 1976 the veteran denied 
adverse reaction to drugs or medicine.  An enlistment 
examination was conducted in March 1979 (the Board notes, 
however, that a second period of service has not been 
verified by the service department).  At that time, the 
veteran reported an allergic reaction to codeine in 1976.  
She did not identify any associated disability.

The current record contains numerous references to drug 
allergies.  Specifically, the record reflects that the 
veteran has been found to be allergic to opioids such as 
Morphine, Codeine, Vicodin, and Demerol.  

A July 2007 treatment record from a VA dermatology clinic 
indicates allergic contact dermatitis to nickel.

At her July 2007 hearing, the veteran testified that she had 
skin reactions and itching when she took the medications to 
which she was allergic.  The transcript indicates that she 
wore a medic alert bracelet that listed those medications.

Having carefully reviewed the evidence pertaining to this 
claim, the Board concludes that service connection for a 
disability due to drug allergies is not warranted.  The 
medical evidence does not demonstrate that the veteran has 
any disability related to a single adverse reaction to 
Codeine noted in 1976.  Rather, while the post-service 
medical evidence establishes that the veteran is allergic to 
certain medications, there is no indication of a disability 
resulting from these allergies.  In summary, the veteran has 
not identified or produced any evidence, medical or 
otherwise, that would tend to show a presently existing 
disability stemming from a single adverse reaction to 
prescribed medication in service.  Congress specifically 
limits entitlement for service-connected disease or injury to 
cases where such incidents have resulted in a disability.  In 
the absence of proof of a present disability, there can be no 
valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 
(1992).

The preponderance of the evidence is against the claim and 
there is no doubt to be resolved.  38 U.S.C.A. § 5107(b), 
Gilbert v. Derwinski, 1 Vet. App. 49 53 (1990).  Accordingly, 
service connection for disability due to drug allergies must 
be denied.

However, the record tends to establish that the veteran has 
more than one type of allergy.  In regard to allergies to 
medication, the appellant has presented no evidence of 
current disability.  See 38 C.F.R. § 3.380.  Based upon the 
record, the evidence establishes that upon removal of the 
allergen, there is no disability.

The record also establishes that during service, the veteran 
developed an allergy to her dog tags.  More recently, VA 
treatment records disclosed that she suffered contact 
dermatitis as a result of allergy to nickel.  Unlike the 
allergies to medications, which she has avoided, the Board 
notes that nickel is a common metal and that avoidance is 
less likely.  The Board finds that it is unlikely that she 
can completely remove herself from such allergen.  Therefore, 
the provisions of 38 C.F.R. § 3.380 warrant a grant of 
service connection for allergic reaction to nickel.


ORDER

Entitlement to service connection for disability due to 
allergies to drugs is denied.

Entitlement to service connection for allergic reaction to 
nickel is granted, subject to the controlling regulations 
applicable to the payment of monetary benefits.


REMAND

The veteran's low back disability is currently evaluated as 
20 percent disabling pursuant to 38 C.F.R. §4.71a, Diagnostic 
Code 5237 (2007), for lumbosacral strain.  

The most recent VA examination was carried out in October 
2004.  At that time, the veteran denied radiation of pain.  

In a May 2006 statement, the veteran asserted that her back 
disability had worsened over the previous several months.  

A February 2007 MRI revealed disc bulging and facet 
arthropathy at L4-L5 with bilateral moderate foraminal 
stenosis.  

At her July 2007 hearing, the veteran indicated that she had 
pain that traveled down her right leg.  She also stated that 
surgery had been considered.

An August 2007 letter from the veteran's VA physician notes 
that the veteran had complained of pain down her right 
buttocks and leg which had recently increased.  He related 
that on neurosurgery consultation in June 2007, the veteran 
was felt to be a candidate for laminectomy but that the 
neurosurgeon wished to attempt physical therapy and pain 
clinic prior to undertaking surgery.  The author noted that 
those appointments were pending.  The records pertaining to 
such treatment should be obtained and associated with the 
record.

In light of evidence which suggests that the veteran's low 
back disability has worsened since she was last afforded a VA 
examination in 2004, the Board concludes that an additional 
examination is warranted.

The veteran is advised that if there is any outstanding 
pertinent evidence, she should submit or identify such 
evidence.

Accordingly, the case is REMANDED for the following action:

1.  Obtain all VA clinical records and 
consultation reports for the period from 
June 2007 to the present.

2.  Schedule the veteran for a VA 
examination to determine the extent of 
her service-connected low back 
disability.  All indicated tests and 
studies are to be performed.  Upon 
examination and review of the record, the 
examiner should describe all 
symptomatology due to the veteran's 
service-connected low back disability.

The complete examination findings, along 
with the complete rationale for all 
opinions expressed, should be clearly set 
forth in the examination report.

If upon completion of the above action the claim remains 
denied, the case should be returned to the Board after 
compliance with appellate procedure.

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. 2007).




______________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs