Citation Nr: 0828531 Decision Date: 08/22/08 Archive Date: 09/02/08 DOCKET NO. 04-23 724 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for skin disease to include as due to exposure to ionizing radiation. 2. Entitlement to service connection for hepatitis. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for rheumatoid arthritis with Felty's syndrome. 5. Entitlement to service connection for a splenectomy. 6. Entitlement to service connection for residuals of amputation of the right arm. 7. Entitlement to service connection for congestive heart failure. 8. Entitlement to service connection for lumbago. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran, who is the appellant, served on active duty from September 1955 to December 1957. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in September 2003 of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In February 2008, the veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. At the hearing the veteran stated that his skin problems were the result of exposure to ionizing radiation. As the veteran did not associate or argue that any of the other claims of service connection were due to exposure to ionizing radiation, he implicitly limited the theory of service connection based on exposure to ionizing radiation to the claim of service connection for skin disease. For this reason, the Board does not address the claim of service connection for hypertension on the basis of the statutory presumption accorded radiation-exposed veterans who engaged in a radiation-risk activity due to in-service ionizing radiation exposure or under the provisions of 38 C.F.R. § 3.311. The claims of service connection for skin disease to include as due to exposure to ionizing radiation, for hepatitis, and for rheumatoid arthritis with Felty's syndrome are REMANDED to the RO via the Appeals Management Center in Washington, DC. A decision on the claims of service connection for a splenectomy, residuals of amputation of the right arm, congestive heart failure, and lumbago is deferred until the development of the claim of service connection for rheumatoid arthritis with Felty's syndrome, requested in the REMAND, is completed. FINDING OF FACT Hypertension was not manifested to a compensable degree within one year from the date of separation from service; hypertension, first diagnosed after service beyond the one- year presumptive period for hypertension as a chronic disease, is unrelated to an injury, disease, or event of service origin. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by service, and hypertension may not be presumed to have been incurred in service based on the one-year presumption for a chronic disease. 38 U.S.C.A. §§ 1131, 1137, 5107(b) (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a) (2007). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claims, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre- and post- adjudication VCAA notice by letters, dated in May 2001, in March 2006, and in August 2006. The veteran was notified of the type of evidence needed to substantiate the claims of service connection, namely, evidence of an injury or disease or event, causing an injury or disease, during service; evidence of current disability; evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service. The veteran was also notified that VA would obtain service records, VA records, and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records, or with his authorization VA would obtain any such records on his behalf. The notice included the provisions for the effective date of the claims and for the degree of disability assignable. As for content of the VCAA notice, the documents substantially complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim). To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The procedural defect was cured as after the RO provided substantial content-complying VCAA notice the claims were readjudicated as evidenced by the supplemental statements of the case, dated in September 2007 and in October 2007. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist As required by 38 U.S.C.A. § 5103A, VA has made reasonable efforts to identify and obtain relevant records in support of the claim. The RO has obtained service records, VA records, and private medical records. In March 2001, the veteran was provided with a copy of his claim file, as he had requested. A VA medical opinion is not required to decide the claim of service connection for hypertension because there is no indication that the claimed disability may be associated with an established event or injury in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4)(B),(C). As the veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the veteran in developing the facts pertinent to the claim of service connection for hypertension is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Principles of Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. If a veteran served 90 days or more on active duty, service incurrence will be presumed for hypertension, if the disease becomes manifest to a compensable degree within the year after service. 38 U.S.C.A. §§ 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre- existing such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for a 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). Factual Background The service treatment records, including the reports of entrance and separation examinations, contain no complaint, finding, history, diagnosis, or treatment of elevated blood pressure readings or of hypertension. After service, private medical records disclose that on hospitalization in June 1999, history included hypertension, but the veteran was not on medication. In October 2000, the veteran was to start on medication to control high blood pressure. On VA hypertension examination in December 2000, history included congestive heart failure, and the examiner stated that the veteran had congestive heart failure and continued to have angina on exertion, and that the veteran had taken medication for hypertension since 1995. The diagnosis was essential hypertension. Analysis On the basis of the service treatment records, in the absence of any clinical finding of elevated blood pressure readings or of hypertension, hypertension was not affirmatively shown to have had onset during service. 38 U.S.C.A. § 1131; 338 C.F.R. § 3.303(a). And as there is no competent evidence either contemporaneous with or after service that hypertension was otherwise noted, that is, observed during service, the principles of service connection pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). The record does show that hypertension was first documented in 1999 with a subsequent history dating to 1995. As hypertension was not manifested to a compensable degree within the one-year presumptive period following separation from service in December 1957, presumptive service connection for hypertension as a chronic disease under 38 U.S.C.A. § 1137 and 38 C.F.R. §§ 3.307 and 3.309 is not established. As for the veteran's statements and testimony, relating to hypertension, hypertension is not a condition under case law, where lay observation has been found to be competent, and therefore the determination as to diagnosis or cause of hypertension is medical in nature, that is, not capable of lay observation, and competent medical evidence is needed to substantiate the claim. See Savage v. Gober, 10 Vet. App. 488, 498 (1997) (On the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Where as here the determination involves a question of a medical diagnosis, not capable of lay observation, or of medical causation, competent medical evidence is required to substantiate the claim. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. As a lay person, the veteran is not qualified through education, training, and expertise to offer an opinion on a medical diagnosis, not capable of lay observation, or on medical causation. For these reasons, the Board rejects the veteran's statements to the extent the statements are made to establish a nexus to service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As the Board may consider only independent medical evidence to support its findings as to questions of a medical diagnosis or of medical causation, not capable of lay observation, and as there is no competent medical evidence that hypertension had onset either during service or within the one-year presumptive period or is otherwise related to an injury, disease, or event of service origin, the preponderance of the evidence is against the claim of service connection for hypertension, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for hypertension is denied. REMAND On the claim of service connection for skin disease to include as due to exposure to ionizing radiation, private medical records show that in December 2000, the veteran had seborrheic dermatitis. VA records show that in May 2002 the veteran had mild actinic damage of the face, neck, forearms, and hands. In August 2002, the assessment was seborrheic dermatitis and mild tinea cruris versus seborrhea of the groin. In December 2002, the Defense Threat Reduction Agency confirmed that the veteran was a participant in U.S. atmospheric nuclear testing in Operation REDWING, and his total radiation dose exposure was 0.024 rem gamma. On May 8, 2003, the Defense Threat Reduction Agency the revised dose estimate to 0.1 rem. In January 2004, a VA physician stated that the veteran had resistant seborrhea dermatitis and actinic keratosis, which may be the result of exposure to ionizing radiation during Operation Redwing. Under 38 C.F.R. § 3.311, neither seborrheic dermatitis nor actinic keratosis is on the list of radiogenic diseases. Under 38 C.F.R. § 3.311(b)(4), if a claimed disease is not on the list, VA shall nevertheless develop the claim under 38 C.F.R. § 3.311(b) where there has been submitted competent scientific or medical evidence that a disease not listed at 38 C.F.R. § 3.311(b)(2) is a radiogenic disease. In light of the VA's physician's opinion, further development of the claim under 38 C.F.R. § 3.311(b) is required before deciding the claim. On the claim of service connection for hepatitis, VA records, date in August 2001, noted that in April 2001, a hepatitic serology panel was negative for the hepatitis C antibody, but was positive for the hepatitis A antibody, and positive for the hepatitis B antibody. In May 2004, C.N.B., MD, after a review of the veteran's medical records, expressed the opinion that it was likely that the veteran acquired hepatitis during service. Dr. B. stated that during service the veteran had several tattoos, which the veteran believed were the cause of his hepatitis. Dr. B. stated that the literature supported an association between needle punctures, e.g., tattoos, and the development of hepatitis, and that the veteran had another major risk factor, namely worldwide travel. Dr. B. expressed the opinion that the veteran likely acquired hepatitis during service because he was fit at service entrance, had tattoos during service that were obtained outside the continental USA, where the risk of hepatitis might have been greater, and had world wide travel during service which also increased his risk for hepatitis. As the record is inconclusive as to whether the veteran has disabling residuals of hepatitis, further development of the claim under the duty to assist, 38 C.F.R. § 3.159(c)(4)(C) is required before deciding the claim. On the claim of service connection for rheumatoid arthritis with Felty's syndrome, private medical records disclose that in October 1976 the veteran was hospitalized for arthritic symptoms of two years' duration, which began with pain, swelling, and stiffness, involving the wrist, knuckles fingers, elbows, shoulders, knees, and to some extent the neck and back. History included hospitalization in 1965 for hepatitis. Possibly anemia was noted. The diagnosis was rheumatoid arthritis. In August 1995, the veteran was hospitalized for a flare-up of rheumatoid arthritis and a lesion on his right elbow. He also had a markedly enlarged spleen. When rehospitalized in October 1995, he had developed gas gangrene in his right arm which had to be amputated. He also had a splenectomy. The diagnoses included Felty's syndrome. The supplementary diagnoses were chronic rheumatoid arthritis and chronic anemia, secondary to Felty's syndrome and blood loss. In May 2004, C.N.B., MD, after a review of the veteran's medical records, expressed the opinion that the veteran first had symptoms of rheumatoid arthritis while in service. Dr. B. explained that in April 2004 the veteran's spouse recalled that in July 1955 the veteran had a problem with swelling of his hands and that the veteran had difficulty removing a ring and difficulty finding a wedding band to fit. Based on this statement, Dr. B. concluded that it was clear that the veteran had a waxing and waning of swollen fingers during service, which were first symptoms of rheumatoid arthritis during service. As the record does not contain sufficient medical evidence to decide the claim, a VA medical opinion is necessary under the duty to assist, 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. On the claim of service connection for skin disease, as the previous radiation does estimates were prepared on or before May 8, 2003, obtain a new dose estimate from the Defense Threat Reduction Agency, and then develop the claim of service connection for skin disease in accordance with 38 C.F.R. § 3.311(b)(4). 2. Ask the veteran for records of hospitalization for hepatitis in 1965 or for any other evidence, identifying the type of hepatitis he is claiming. 3. On the claim of service connection for hepatitis, obtain the hepatitic serology panel of April 2001 from the Overton Brooks VA Medical Center. Then have the laboratory results reviewed by a VA specialist in liver diseases to identify the type of hepatitis shown. If the laboratory results are unavailable, then have the physician review the reported findings in the VA record of August 2001. [For convenience a copy of which is placed in Volume 5 below the Board's remand.] For any type of hepatitis identified, the examiner is asked to express an opinion as to whether hepatitis is chronic. If chronic hepatitis is shown, the examiner is asked to express an opinion on whether it is at least as likely as not that the type of hepatitis is related to the veteran's acquisition of a tattoo on the left forearm during service. The examiner is also asked for an opinion on whether world-wide travel is a recognized risk factor for hepatitis. In formulating an opinion, the examiner is asked to comment on the fact that the veteran had two tattoos on entering service. The examiner is also asked to consider that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. 4. On the claim of service connection for rheumatoid arthritis with Felty's syndrome, arrange to have the veteran's file reviewed by a VA rheumatologist to determine whether it is at least as likely as not that the rheumatoid arthritis had onset during service, considering accepted medical principles, pertaining to the history, manifestations, clinical course, and character of rheumatoid arthritis. In formulating an opinion, the VA rheumatologist is asked to comment on the clinical significance that rheumatoid arthritis was first document in 1976, almost 20 years after service with a two-year history of arthritic symptoms, including pain, swelling, and stiffness, involving the wrist, knuckles fingers, elbows, shoulders, knees, and to some extent the neck and back. Considering accepted medical principles, pertaining to the history, manifestations, clinical course, and character of rheumatoid arthritis, the examiner is asked to comment on the opinion of Dr. B. that predicated the diagnosis of rheumatoid arthritis on the recollections of the veteran's spouse in 2004 that in July 1955 the veteran had a problem with in swelling of his hands and that the veteran had difficulty removing a ring and difficulty finding a wedding band forty years after the veteran left service in December 1957. The veteran and his spouse were married in November 1958. In formulating the medical opinion, the rheumatologist is asked to consider that the term "at least as likely as not" does not mean "within the realm of possibility," rather, it means that the weight of the medical evidence both for and against the conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. 5. After the above has been completed, adjudicate the claims. If any determination remains adverse, furnish the veteran a supplemental statement of the case and return the case to the Board. The veteran has the right to submit additional evidence and argument on the 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. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs