Citation Nr: 1011908 Decision Date: 03/30/10 Archive Date: 04/07/10 DOCKET NO. 04-19 700 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for panhypopituitarism, claimed as a residual of head trauma. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Gina E. Fenice, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1976 to December 1996. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Colombia, South Carolina. Jurisdiction was subsequently transferred to the RO in Roanoke, Virginia. When this case was previously before the Board in April 2008, the claim of whether new and material evidence has been presented to reopen a claim of entitlement to service connection for epilepsy was reopened and remanded. The claim of entitlement to service connection for panhypopituitarism was also remanded. The case has since returned to the Board for further appellate action. Following the April 2008 remand, the Appeals Management Center (AMC) granted service connection for epilepsy in a December 2008 rating decision. This is considered a full grant of the issue on appeal, and thus the Board will not address this claim. FINDING OF FACT Panhypopituitarism was not present in service, and is not etiologically related to service or an in-service head trauma. CONCLUSION OF LAW Panhypopituitarism was not incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1103, 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2009), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the case at hand, the record reflects that the originating agency provided the Veteran with the notice required under the VCAA by letters mailed in June 2003 and April 2009. Although the Veteran was not provided notice with respect to the disability rating or effective date element of the claim until after the initial adjudication, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As explained below, the Board has determined that service connection is not warranted for the Veteran's claimed panhypopituitarism. Consequently, no disability rating or effective date will be assigned, so the failure to provide earlier notice with respect to those elements of the claim was no more than harmless error. The Board also notes that the Veteran has been afforded appropriate VA examinations and service treatment records and pertinent VA and private medical records have been obtained. With regard to the Veteran's January 2010 assertion that the VA examination was inadequate because he was not examined by an endocrinologist, the Board concludes that in scheduling the Veteran for an endocrinology examination, regardless of whether the examining physician was an endocrinologist, the AMC substantially complied with the Board remand directives, such that a remand for an additional examination is not necessary. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In sum, the Board is satisfied that any procedural errors in the originating agency's development and consideration of the claim were insignificant and non prejudicial to the Veteran. Accordingly, the Board will address the merits of the claim. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Degmetich v. Brown, 104 F. 3d 1328 (1997); Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection for certain chronic diseases will be rebuttably presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (2009). The Veteran's panhypopituitarism, however, is not a disorder for which service connection may be granted on a presumptive basis. 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2009). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Veteran contends that he is entitled to service connection for his panhypopituitarism condition, as he believes that this condition is related to his service. In particular, the Veteran alleges that this condition arose as a result of in-service head trauma. The Veteran service treatment records make numerous references to an in-service head injury, as well as multiple seizures following this injury in the late 1970s. However, there is no indication that the Veteran was diagnosed with panhypopituitarism during service. With respect to post service medical records, records from the Mary Immaculate Hospital note hyponatremia in July 2001. Records from the Portsmouth Naval Hospital indicate that the Veteran was diagnosed with panhypopituitarism in 2002. He was treated for this condition along with manifestations of hyponatremia in 2002 and 2003. The October 2002 report notes a 1-year history of panhypopituitarism. A January 2002 report notes no prior history of a thyroid or pituitary disorder, but a remote history of severe head trauma. Records from the McDonald Army Health Clinic through 2008 showed continued treatment of this condition. At no time did any treating clinician relate the Veteran's panhypopituitarism to his active service, including the in- service head trauma. The Veteran was afforded a VA examination in October 2009 to determine the etiology of this condition. The examiner indicated that he reviewed the Veteran's claims file. The Veteran reported a history of a motor vehicle accident in service in 1977, after which he developed a seizure disorder. He indicated that he developed additional seizures in 2001 and was hospitalized. Eventually, the Veteran was seen by a specialist at the Portsmouth Naval Hospital, who diagnosed the Veteran with panhypopituitarism. He noted that he continued to take medication for this condition. The Veteran also expressed his belief that the motor vehicle accident caused the panhypopituitarism, and that his seizure disorder was the initial symptom. The examiner determined that the Veteran's panhypopituitarism was related to adrenal insufficiency, syndrome of inappropriate antidiuretic hormone hypersecretion (SIADH), or hyponatremia, and that it was less likely as not a result of the motor vehicle accident in 1977 while in active duty service. In so finding, the examiner noted that the Veteran had no symptoms of panhypopituitarism documented in his medical records prior to 2003. Thus, the development of panhypopituitarism did not manifest until 25 years after the initial head trauma. There was also no documentation in service of any signs of panhypopituitarism. The examiner also pointed out that this condition is rarely caused by trauma to the brain or pituitary, as supported by the Merck Reference Manual. In sum, there is no medical evidence of the claimed disability in service or until many years thereafter, and the medical evidence of record does not link the Veteran's panhypopituitarism to service, and in particular, to his in- service head trauma. In fact, the October 2009 VA examiner concluded that the Veteran's current diagnosis of panhypopituitarism is less likely as not a result of the in- service trauma. There is no conflicting medical opinion of record. While the Board recognizes that the Veteran asserts entitlement to service connection for hypopituitarism, because, as noted in the December 2009 supplemental statement of the case, "McDonald Army Hospital Health records for the period 10/1996 to 1/2008 noted treatment for panhypopituitarism," the Board concludes that his argument is without merit. As noted above, the Veteran was not diagnosed with panhypopituitarism until 2003. The statement in the supplemental statement of the case noting treatment records that in the aggregate noted treatment for panhypopituitarism cannot be read to mean that records dated earlier than 2003 reflected treatment for panhypopituitarism. Regardless, service connection for panhypopituitarism may not be awarded on a presumptive basis, so even if the Veteran had been diagnosed with the disorder within the year after his separation from service, the date of the diagnosis would not be controlling in determining his entitlement to service connection. In essence, the evidence linking the Veteran's current panhypopituitarism to his in-service head injury is limited to the Veteran's own statements. Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay- observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). It is true that lay statements, such as those by the Veteran, may be competent to support claims for service connection by supporting the occurrence of lay- observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.159, 3.303(a); Jandreau; Buchanan, supra. In the instant case, however, the evidence of record does not demonstrate that the Veteran, who is competent to comment on symptoms, has the requisite expertise to render a medical diagnosis or to comment on a question of medical causation. While the contentions have been carefully and sympathetically considered, the competent and uncontroverted medical opinion by the VA examiner is that it is less likely than not that the Veteran's panhypopituitarism is related to service. Accordingly, the Board must conclude that service connection is not warranted for the claimed disability. In reaching this decision, the Board has determined that the (CONTINUED ON NEXT PAGE) benefit-of-the doubt rule is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Entitlement to service connection for panhypopituitarism, claimed as residual of head trauma, is denied. ____________________________________________ S.C. KREMBS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs