Citation Nr: 0812819 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 05-37 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for lupus with hypertension and anemia, claimed as due to exposure to herbicide. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The appellant served on active duty from January 1967 to January 1971. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a June 2004 rating decision of the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO). In June 2006, the undersigned Veterans Law Judge conducted a hearing at the RO. The transcript is associated with the claims folder. In July 2007, the Board remanded the appeal to the Appeals Management Center (AMC) for additional development. The AMC obtained copies of Social Security Administration (SSA) disability records, which have been associated with the claims folder. VA sent the appellant a Supplemental Statement of the Case (SSOC) dated November 23, 2008. The appellant responded with the submission of additional evidence: A duplicate copy of a letter dated May 2003 from Dr. D.G., two articles on veterans who served off the shores of Vietnam or "Blue Water" veterans, and an article on autoimmune dysfunction in Vietnam veterans. This evidence was received at the Board on March 6, 2008. The Board finds that referral of this evidence to the agency of original jurisdiction is not warranted as the evidence is duplicative or addresses matters not in dispute (i.e., presumptive service connection for lupus if shown in initial post separation year), or addresses those conditions accepted as presumptive disorder based on herbicide exposure (lupus is not included among those listed at 38 C.F.R. § 3.309(e)). Lastly, as the claim before the Board involves a disability not included in the list of presumptive disabilities based on herbicide exposure, this case is not subject to the Haas v. Nicholson, 20 Vet. App. 257 (2006), Court ordered stay. Historically, the Board notes that the United States Court of Appeals for Veterans Claims (Court) reversed a decision of the Board which denied service connection for disabilities claimed as a result of exposure to herbicides. Pending appeal of that decision, VA imposed a stay on the adjudication of claims affected by Haas on September 21, 2006. In Ribaudo v. Nicolson, 21 Vet. App. 137 (2007) (Per curiam order), the Court found that VA's stay was unlawful and ordered that VA rescind the stay order and process appeals that were stayed. VA subsequently filed a motion for a stay on the adjudication of cases potentially affected by Haas. The motion was granted and on January 27, 2007, the Court ordered a stay on the adjudication of cases before VA. Ribaudo v. Nicholson, 21 Vet. App. 137 (2007) (Per curiam order). Again, the Board finds that a stay is not warranted in this case as the claim before the Board involves a disability not included in the list of presumptive disabilities based on herbicide exposure; the current appeal does not turn on whether the appellant was exposed to herbicide agents in service. FINDINGS OF FACT 1. Lupus is not shown in service or within the initial post separation year. 2. Lupus, first shown many years after service, is not attributable to service, including herbicide exposure. CONCLUSION OF LAW Lupus with hypertension and anemia was not incurred in or aggravated by service, and it is not proximately due to or the result of service, to include exposure to herbicide. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. § 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)), imposes obligations on VA in terms of its duty to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2005); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must inform the claimant of any information and evidence not of record that (1) is necessary to substantiate the claim as to all five elements of the service connection claim (including degree of disability and effective date of disability (See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); Quartuccio, supra. at 187; 38 C.F.R. § 3.159(b) (2005). As a fourth notice requirement, VA must "request that the claimant provide any evidence in the claimant's possession that pertains to the claim." 38 C.F.R. § 3.159(b) (1); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Notice must be provided "at the time" that VA receives a completed or substantially complete application for VA-administered benefits. Pelegrini at 119 (2004). This timing requirement applies equally to the initial-disability- rating and effective-date elements of a service connection claim. Dingess/Hartman, supra. The Board finds that the VCAA letter sent to the appellant in November 2003 essentially complied with statutory notice requirements as outlined above. VA notified the appellant of the evidence obtained, the evidence VA was responsible for obtaining, and the evidence necessary to establish entitlement to the benefits sought including the types of evidence that would assist in this matter. Also, VA notified the appellant that he should submit evidence in his possession or alternatively provide VA with sufficient information to allow VA to obtain the evidence on his behalf. However, notice of the disability rating and effective date elements was not provided until November 2008, after the initial rating decision, and it was included as part of the SSOC. This is error and presumed prejudicial to the appellant unless VA can demonstrate otherwise. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In this case, the Board finds that there is prejudice to the appellant in both the timing error and inclusion of the notice in the SSOC. However, the Board finds that the fundamental fairness of the adjudication process was not impacted. Essentially, the appellant has not been deprived of information needed to substantiate his claim and the very purpose of the VCAA notice has not been frustrated by the error here. VA provided notice of the disability rating and effective dates elements and he subsequently acknowledged receipt by returning to VA of a copy of the November 2008 SSOC (circling "Disability Rating") along with other evidentiary submissions. Additionally, the Board observes that the appellant has been represented throughout his appeal. Accordingly, Board believes that it should proceed with an adjudication of the appeal. Stated differently, although the veteran received inadequate preadjudicatory notice, and that error is presumed prejudicial, the record reflects that he was provided with a meaningful opportunity such that the preadjudicatory notice error did not affect the essential fairness of the adjudication now on appeal. The Board notes that, because the claim is denied as discussed in the following decision, the benefit sought could not be awarded even had there been no defect in the notice. In the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). VA has also satisfied its duty to assist the appellant under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. Service medical records, service personnel records, SSA disability records, letters from VA Dr. D.G., and VA medical records have been associated with the claims folder. Additionally, the appellant provided VA with numerous articles-abstracts pertaining to lupus or herbicide exposure which have been associated with the claims folder. Also, VA provided the appellant with a hearing before the undersigned Veterans Law Judge in June 2006. A transcript is associated with the claims folder. While a VA examination was not given the appellant in connection with his current lupus claim, he was afforded a VA examination in October 1993. Furthermore, as the evidence of record does not include evidence of an association between the appellant's post service diagnosis for lupus and his period of active service, including the alleged herbicide exposure, VA has no duty to provide a VA examination. 38 U.S.C.A § 5103A(d) and 38 C.F.R. § 3.159(c)(4). To the extent that he claims he has lupus, the record is adequate to establish that fact and examination solely for that purpose is not needed. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that there is no indication that there is any additional relevant evidence to be obtained either by the VA or by the appellant, and there is no other specific evidence to advise him to obtain. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (holding that both the statute, 38 U.S.C. § 5103(a), and the regulation, 38 C.F.R. § 3.159, clearly require the Secretary to notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the Secretary). Accordingly, the Board concludes it should proceed, as specific notice as to what evidence the appellant could or should obtain was provided and no additional pertinent evidence was submitted. The claimant has had sufficient notice of the type of information needed to support the claim and the evidence necessary to complete the application. The fundamental fairness of the adjudication process has not been compromised and VA has done everything reasonably possible to assist the claimant. Accordingly, appellate review may proceed without prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection The appellant contends that he developed lupus with hypertension and anemia due to herbicide exposure in service. He did not engaged in combat and he does not assert his claimed disability is a result of combat. Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not for application in this matter. The appellant served in the U.S. Navy from January 1967 to January 1971. Available service personnel records reflect that he served aboard the U.S.S. Kearsarge and U.S.S. Independence. These records further show that the was awarded the National Defense Service Medal and the Vietnam Service Medal. The award of the Vietnam Service Medal is not reflected on his DD 214. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Systemic lupus erythematosus shall be considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service in a period of war or following peacetime service on or after January 1, 1947. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In addition, certain presumptions are granted for veterans who were exposed to the herbicide Agent Orange during service in Vietnam. However, lupus is not among the conditions for which presumptive service connection is available. See 38 C.F.R. §§ 3.307, 3.309 (e). Notwithstanding, claimants may still establish service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service medical records show no findings of or treatment for lupus. Clinical evaluation on service entrance and separation was essentially normal. On his VA claim for compensation or pension received in September 1993, the appellant reported having lupus since August 1991. VA treatment records reflect that he was hospitalized in June 1993 for systemic lupus erythematous (SLE) with nephritis and followed as an outpatient. Report of VA examination dated October 1993 reflects, by history, high blood pressure since 1989 and lupus since 1989. The diagnoses were SLE, lupus nephritis with 75 percent of overall kidney function, severe hypertension due to lupus nephritis, anemia secondary to renal failure, and nephritic syndrome. Letters dated April 1994, May 1997, May 2003, and September 2005 from Dr. D.G., VA Staff Physician, Nephrology Section, are essentially the same and reflect that the appellant was followed for SLE and chronic renal failure, leading to End Stage Renal Disease. Dr. D.G. noted in April 1993 that the appellant was under his care since 1992. He noted in September 2005 that the appellant was exposed to Agent Orange. In further support of his claim, the appellant submitted a copy of a Vietnam Veterans of America Lupus Survey, a copy of a VA medical abstract from the internet dated June 1999 titled The Role of Nitric Oxide in Systemic Lupus Erythematosus, and a copy of a VA medical abstract from the internet dated June 1999 titled The Molecular Mechanisms of Anti-DNA Production and Pathogenicity. At a June 2006 hearing, the appellant testified that he believes he developed lupus because of herbicide exposure in service. He further testified that he believes the letters from Dr. D.G. were favorable medical opinions which attributed his lupus to Agent Orange exposure in service. In weighing the evidence of record, the Board concludes that the preponderance of the evidence is against service connection for lupus with hypertension and anemia. Lupus is not shown in service or within the initial post separation year, and reliable evidence attributing lupus with hypertension and anemia to service, including herbicide exposure, has not been presented. The evidence reflects that the appellant reported inconsistent dates of onset for lupus. He has reported 1989 and 1991 as dates of onset. Dr. D.G. reported treating the appellant as early as 1992. Regardless of whether lupus was shown in 1989 or 1991, this is well-past the one-year presumptive period for service connection. Furthermore, the evidence of record contains no medical opinions or findings establishing that the currently diagnosed SLE with hypertension and anemia is the result of the appellant's active service, including his report of exposure to the herbicide Agent Orange. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (incurrence of a disorder or disease during service may be rebutted by absence of medical treatment for, or related complaints about, the claimed condition for a prolonged period after service). As for the appellant's statements and testimony that his doctor has related his current condition to service, hearsay medical evidence, as transmitted by a lay person, is not competent evidence because the connection between what a physician said and the lay person's account of what the physician purportedly said is simply too attenuated and inherently unreliable to constitute medical evidence. Robinette v. Brown, 8 Vet. App. 69, 77 (1995). The Board observes that neither the statements from Dr. D.G. nor the VA treatment records themselves contain such statements. Dr. D.G. notes that the veteran has lupus and separately notes that the veteran was exposed. However, D.G. does not establish a relationship between the two. Where as here, the determinative issue involves a medical diagnosis and an opinion as to etiology, medical evidence is required to support the claim. The appellant as a layperson is not competent to offer an opinion as to a medical diagnosis, or an opinion etiologically linking his currently manifested lupus to active service, including as the result of exposure to the herbicide Agent Orange. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Accordingly, the appellant's testimony has diminished probative value. Additionally, the Board has considered the medical article- abstracts and Lupus Survey evidence. Medical treatise evidence can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). However, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Here, crucially, the medical article-abstract and survey evidence, like treatise evidence, is general in nature and does not specifically relate to the facts and circumstances surrounding the appellant's case. As such, it has limited probative value. Accordingly, the claim is denied. Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). , and the benefit-of-the- doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for lupus with hypertension and anemia, claimed as due to exposure to herbicide, is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs