Citation Nr: 1124450 Decision Date: 06/28/11 Archive Date: 07/06/11 DOCKET NO. 06-10 360 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for sickle cell anemia. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from July 1982 to January 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Board previously remanded this matter in January 2009. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT Competent medical evidence establishes that sickle cell anemia symptomatology initially manifested during service. CONCLUSION OF LAW Sickle cell anemia was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303; VAOPGCPREC 67-90 (July 18, 1990). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), became law. Regulations implementing the VCAA were then published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and are now codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2010). The VCAA and its implementing regulations are applicable to this appeal. The duty to notify under the VCAA requires VA to notify the claimant and the claimant's representative, if any, of the information and medical or lay evidence that is necessary to substantiate the claim. In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004), the Court specifically held that the VCAA requires VA to provide notice that informs 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. The Court has indicated that notice under the VCAA must be given prior to an initial unfavorable decision by the agency of original jurisdiction. Id. The VCAA and its implementing regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. Under these provisions, VA is required to obtain service medical records and relevant VA healthcare records and must make reasonable efforts to help the veteran obtain other relevant medical records. The duty to assist also requires VA to provide the claimant with a medical examination or a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R § 3.159 (2010). The Court has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. at 183 (2002). 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. Dingess/Hartman at 488. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In a June 2005 letter, the RO provided the Veteran with notice of the evidence required to substantiate his claim for service connection for sickle cell anemia. The letter informed the Veteran what information and evidence VA was responsible for obtaining and what evidence VA would assist him in obtaining. This letter satisfied the timing requirements set forth in Pelegrini, as it was provided prior to the rating decision on appeal. A March 2006 letter provided notice of how VA determines disability ratings and effective dates. Regarding the duty to assist, the RO obtained the pertinent evidence necessary to decide the claim. The record on appeal includes service treatment records and relevant post-service medical records identified by the Veteran. The Veteran did not report for a VA examination scheduled pursuant to the January 2009 remand. Accordingly, the Board will consider the case based upon the evidence of record. 38 C.F.R. § 3.655 (2010). In this case, VA provided the veteran adequate notice and assistance with regard to the claim on appeal. Even assuming otherwise, remanding for additional notification and/or assistance is unnecessary because, due to the favorable disposition of this claim, the Board's decision to proceed in adjudicating it does not prejudice the veteran in the disposition thereof. Bernard v. Brown, 4 Vet. App. 384, 392- 94 (1993). II. Analysis of Claim Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also 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. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be medical evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). A veteran will be considered to have been in sound condition when examined, accepted and enrolled in service, except as to defects, infirmities, or disorders noted at entrance into service, or where evidence or medical judgment is such as to warrant a finding that an injury or disease existed prior thereto. 38 U.S.C.A. §§ 1111, 1132. Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. VAOPGCPREC 3-2003 (July 16, 2003). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disorder. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a) (2010). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). VA's General Counsel has determined that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990). Moreover, diseases of hereditary origin can be considered incurred, rather than aggravated, in service "if their symptomatology did not manifest itself until after entry on duty." VAOPGCPREC 67-90 (July 18, 1990). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran had active duty service from July 1982 to January 1991. The report of the January 1982 enlistment examination did not note a diagnosis or history of sickle cell anemia. Service treatment records reflect that the Veteran was seen in September 1982 in his 30th day of basic training for evaluation of sickle cell disease. With respect to history of the illness, medical records indicated that the Veteran was seen at the hematology clinic because of sickle cell disease. He was initially seen by the central dispensary for muscle aches and shortness of breath with running. He was found to be anemic.. Subsequent workup included a hemoglobin electrophoresis. This electrophoresis was consistent with sickle cell-C disease. It was noted that the Veteran had no prior knowledge that he had sickle cell-C disease and had not been symptomatic in the past. A physician rendered a final diagnosis of sickle cell c disease. A March 1988 entry in the service treatment records noted an assessment of sickle cell disease, diagnosed at the end of basic training. Post-service VA treatment records reflect a history of sickle cell disease with first presentation in July 1982. In March 2005, the Veteran submitted an opinion from a VA physician who has treated him for sickle cell disease. The VA physician noted that the Veteran had been under his care for two years. The physician indicated that the Veteran was first diagnosed with sickle cell anemia in 1982 while in the Air Force. As indicated above, sickle cell disease was not noted upon the Veteran's enlistment. Accordingly, in order to rebut the presumption of soundness, it must be shown by clear and unmistakable evidence that sickle cell anemia existed prior to service and was not aggravated thereby. In this case, the evidence does not clearly and unmistakably establish that sickle cell disease existed prior to service. In this regard, there is no evidence of treatment or diagnosis of sickle cell disease prior to the Veteran's active duty service. The RO determined that the Veteran's sickle cell disease is a constitutional and developmental abnormality that was not permanently aggravated beyond its normal progression during active service. Under VAOPGCPREC 67-90 (July 18, 1990), a disease of hereditary origin may be considered incurred in service if the symptomatology did not manifest until after entry on duty. The record in this case establishes that sickle cell disease initially manifested on active duty during basic training. This is documented in the service treatment records and post-service medical records, which reflect that the initial manifestations of sickle cell disease were seen in basic training in July and September 1982. Accordingly, the Board concludes that service connection for sickle cell anemia is warranted. ORDER Service connection for sickle cell anemia is granted. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs