Citation Nr: 1131990 Decision Date: 08/30/11 Archive Date: 09/07/11 DOCKET NO. 07-10 131 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for chronic cytomegalovirus (CMV) infection, claimed as malaise. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Tiffany Sykes, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1964 to July 1967. This appeal to the Board of Veterans' Appeals (Board) is from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In May 2008, the Board remanded the claim to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. Specifically, the Board instructed the AMC/RO to send the Veteran a letter complying with the notice requirements of Kent v. Nicholson, 20 Vet. App. 1(2006), and to schedule him for a hearing at the RO before a Veterans Law Judge of the Board (i.e., a Travel Board hearing). After receiving the file back from the Board on remand, the RO sent the Veteran a letter in September 2008 to comply with Kent. The RO also scheduled him for a Travel Board hearing in March 2009, but in February 2009, so prior to that scheduled hearing, he indicated he would be unable to attend it because he needed to gather more information for his claim and make more medical appointments. Consequently, the RO rescheduled his hearing for June 2009. But he responded in May 2009 that he was still undergoing medical tests for infectious disease. He therefore requested to again reschedule his Travel Board hearing, which the RO again did - this time for April 2010. But he submitted yet another statement in March 2010 indicating he was still acquiring more information and evidence for his claim. The judge that was scheduled to preside over that most recent hearing, however, the undersigned, denied this motion to again reschedule the hearing since the hearing already had been rescheduled twice (so, in total, the Veteran had had three opportunities to have this requested hearing), and he had not provided good cause as to why he had yet to obtain the additional supporting evidence mentioned. 38 C.F.R. § 20.704(c) (2010). In a subsequent June 2010 Board decision, this claim was reopened on the basis of new and material evidence. But rather than immediately readjudicating the claim on its underlying merits, the Board instead remanded the claim to the RO via the AMC to have the Veteran undergo a VA compensation examination for a medical nexus opinion concerning the etiology of his CMV, including especially in terms of whether any symptoms he had experienced during his military service, such as malaise, were early, i.e., prodromal indications of CMV, though not actually diagnosed until years later after service. This requested development has been completed and the claim is once again before the Board for a decision on its merits. FINDING OF FACT The most probative (meaning competent and credible) medical and other evidence of record indicates the Veteran's CMV, claimed as malaise, is not attributable to his military service, and specifically not to any symptoms, disease or injury during his service. CONCLUSION OF LAW The Veteran's CMV, claimed as malaise, was not incurred in or aggravated by his active military service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2009); 38 C.F.R. § 3.303 (2010) REASONS AND BASES FOR FINDING AND CONCLUSION In the interest of clarity, the Board will initially discuss whether the claim has been properly developed for appellate review. The Board will then address the claim on its underlying merits, providing relevant VA case law, regulations and statutory provisions, the relevant factual background, and an analysis of its decision. I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). These VCAA notice requirements apply to all five elements of a service-connection claim: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States Supreme Court made clear that a reviewing court, in considering the rule of prejudicial error, is precluded from applying a mandatory presumption of prejudice rather than assessing whether, based on the facts of each case, the error was outcome determinative. In Sanders, the Supreme Court rejected the lower Federal Circuit's framework (see Sanders v. Nicholson, 487 F. 3d 881, 889 (Fed. Cir. 2007)) that all VA notice errors are presumptively prejudicial, in part, because it was "complex, rigid, and mandatory." Id., at 1704. The Supreme Court rejected the Federal Circuit's analysis because it imposed an unreasonable evidentiary burden on VA to rebut the presumption and because it required VA to demonstrate why the error was harmless, rather than requiring the appellant - as the pleading party, to show the error was harmful. Id., at 1705-06. The Supreme Court stated that it had "warned against courts' determining whether an error is harmless through the use of mandatory presumptions and rigid rules rather than case-specific application of judgment, based upon examination of the record." Id., at 1704-05. Thus, it is clear from the Supreme Court's analysis that, while the Veterans Court could conclude generally that a specific type of error is more likely to prejudice an appellant, the error must nonetheless be examined in the context of the facts of the particular case. Id. The Veterans Court held in Vazquez-Flores v. Peake, 22 Vet. App. 37, 48 (2008), since overturned on other grounds in Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009), that prejudicial deficiencies in the timing or content of a VCAA notice can be cured by showing the essential fairness of the adjudication will not be affected because: (1) the defect was cured by actual knowledge on the part of the claimant ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F. 3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores, 22 Vet. App. at 46. See also Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had erred by relying on various post-decisional documents for concluding adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Veterans Court nonetheless determined the evidence established the Veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore found the error harmless). In this case, letters satisfying the notice requirements of 38 C.F.R. § 3.159(b)(1) were sent to the Veteran in November 2003, August 2005, April and August 2008, and most recently in June 2011 in the SSOC. These letters, especially in combination, informed him of the type of information and evidence needed to substantiate his claim and of his and VA's respective responsibilities in obtaining this supporting evidence. He also was duly apprised of the "downstream" disability rating and effective date elements of his claim. And although he was not informed of these downstream elements of his claim prior to the initial adjudication of his claim in the February 2006 rating decision, so not in the preferred sequence, the AMC since has readjudicated his claim in the June 2011 SSOC - including considering additional evidence received in response to this additional notice. So the timing defect in the provision of this additional notice, since it did not precede the initial adjudication of the claim but was, instead, post-adjudicatory, has been rectified ("cured") because the claim has been reconsidered since providing this additional notice. VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of this claim that is obtainable. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; The RO obtained his service treatment records (STRs), VA treatment records, private treatment records, and any relevant lay statements. Additionally, he was provided VA compensation examinations in November 2003, June 2004, and January 2006 to explore various aspects of his complaints concerning his CMV and its purported relationship to his complaints and treatment for malaise and other flu-like symptoms during his military service. Further, and in accordance with the Board's June 2010 remand directives, he was again scheduled for VA examinations in May and June 2011 for still additional comment on this determinative issue of causation. McLendon v. Nicholson, 20 Vet. App. 79 (2006), 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). And in having him reexamined in May and June 2011 for this additional medical comment, there was compliance with this remand directive. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, the Board is satisfied that VA has provided all assistance required by the VCAA and that appellate review may proceed without prejudicing the Veteran. II. Entitlement to Service Connection for CMV, Claimed as Malaise The Veteran contends that malaise and similar symptoms he experienced during his military service, while stationed in Vietnam, were early indications of his later diagnosed CMV. But unfortunately, after reviewing the evidence of record, the Board finds that the preponderance of the evidence is against his claim, so it must be denied. Service connection may be granted if it is shown the Veteran suffers from a disability resulting from an injury sustained or a disease contracted in the line of duty during his active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303(a), 3.306. Service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability - or at least has since filing his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). A disorder also may be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or was seen in service with continuity of symptomatology demonstrated after service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity (permanency) of disease or injury in service and in turn link current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). In order to establish a showing of chronic disease in service, or within a presumptive period per § 3.307, 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," is required. 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, 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, (e.g., a broken leg, separated shoulder, flat feet, varicose veins, etc.), (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) So medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumptive period, or whether it can be so identified by lay observation). Savage, 10 Vet. App. 488, 494-97 (1997). See also Barr v. Nicholson, 21 Vet. App. 303 (2007). In determining whether service connection is warranted for a claimed disability, VA adjudicators have the responsibility of determining whether the evidence supports the claim or is in relative equipoise (i.e., about evenly balanced for and against the claim), with the Veteran prevailing in either event. Conversely, the claim will be denied if the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). All reasonable doubt is resolved in the Veteran's favor. 38 CFR § 3.102. As previously noted in the Board's June 2010 remand, there is no disputing the Veteran has received the requisite diagnosis of CMV. His private physician, Dr. J.R., and his practicing associates, made diagnoses of CMV and chronic fatigue syndrome beginning in September 1993 and continuing to October 2003. The November 2003 and March and June 2004 VA compensation examiners confirmed this diagnosis of CMV. The January 2006 and May and June 2004 VA examiners did not find indications of then active or chronic CMV, however. The May and June 2011 VA examiners also noted diagnoses of fibromyalgia with associated chronic fatigue. Hence, resolution of this claim ultimately turns on whether there also is the required probative (meaning competent and credible) evidence attributing the diagnosis of CMV to the Veteran's military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("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 a disease incurred in service."). And, unfortunately, based on the medical nexus opinions obtained on remand concerning this determinative issue, it is in this critical respect that his claim fails. Regarding in-service incurrence of a relevant disease or injury, the Veteran's STRs show treatment beginning in 1964 for an upper respiratory infection, cold and sore throat. Thereafter, he also received treatment for a sore throat and cold in 1965, in 1966 for vomiting, nausea, malaise, weakness, flu syndrome, reddened tonsils, and chest cold, and in 1967 for chest cold, chest pain, diarrhea and vomiting. However, his military separation examination was unremarkable, and he contemporaneously reported that his then present health was "excellent". Concerning post-service evaluation and treatment for CMV, the Board sees that the Veteran's private medical records (PMRs) during the years since service included laboratory tests in 1984 and 1989 for CMV, but the diagnostic assessment was "yuppie disease." Thereafter, PMRs from Dr. J.R. and his associates also note a diagnosis of and treatment for CMV and chronic fatigue syndrome beginning in September 1993 and continuing through October 2003. The Veteran's first VA compensation examination was in November 2003. This examiner diagnosed the Veteran with positive CMV per his history but determined it is not due to any exposure to Agent Orange in Vietnam (though the Veteran's claim is not predicated on this notion, only that he had experienced malaise while in Vietnam, not as a consequence of anything that had occurred while there such as exposure to Agent Orange). This examiner did not provide any medical nexus opinion addressing the etiology of the CMV in terms of whether it was otherwise related to the Veteran's military service. The June 2004 VA examiner also failed to address the CMV as it may relate to the Veteran's military service, noting only that he had a history of this disease. The January 2006 VA examiner stated the Veteran had failed to show evidence of active or chronic CMV and did not render an opinion as to any possible etiology of the prior diagnoses of this disease. Therefore, in compliance with the Board's June 2010 remand directive, the Veteran had additional VA examinations in May and June 2011 to specifically determine the nature and etiology of this disorder, including especially in terms of whether it is attributable to his military service as he is alleging. To this end, the VA examiners were asked to determine whether the symptoms he experienced during his military service, such as malaise, were early, i.e., prodromal, indications of CMV, though not actually diagnosed until years later after service. After evaluating the Veteran and reviewing the pertinent evidence in the claims file, the May 2011 VA examiner diagnosed chronic fatigue due to fibromyalgia, but clarified the Veteran does not have chronic fatigue syndrome (CFS). [It should also be noted at this point that the Veteran did not serve in the Southwest Theater of Operations during the Persian Gulf War, so his claim is not predicated on his chronic fatigue or fibromyalgia being the result of undiagnosed illness of the type contemplated by 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317.] The May 2011 VA examiner explained that CMV infection produces an asymptomatic or minimally symptomatic acute illness in immunocompetent patients. Moreover, the mere presence of CMV antibodies is an indication that the Veteran had the virus at one time, but it does not indicate a current, active or chronic infection. This examiner stated the presence of seroprevalence for CMV is in 40 to 100 percent of the adult population, increasing to 81 percent for people ages 30 to 60 years old. Thus, almost all adults will have serological evidence of having had CMV in the past. However, added this examiner, the Veteran's bone marrow testing did not show evidence of CMV viral DNA. Further, the infectious disease testing did not show reactivation of the latent CMV or any other novel exogenous strain. This examiner continued on to note that the Veteran's clinical history and physical examination are consistent with fibromyalgia. Concerning his in-service cold and flu-like symptoms, this examiner indicated the symptoms are too nonspecific to be attributed to CMV or indicative of prodromal symptoms of CMV. Instead, concluded this examiner, other common virus, such as rhinovirus and adenovirus, are more likely to have caused the symptom in service. In June 2011, the Veteran was again examined by a different VA physician. This examiner, after reviewing the claims file, also determined it is unlikely that any symptoms in service (especially related to the Veteran's complaints and treatment during service for "malaise" and other cold or flu-like symptoms) were prodromal indications of the later diagnosed CMV. By way of explanation, this examiner stated these symptoms are non-diagnostic for CMV infection and no such diagnosis was rendered in service or during the separation examination. Further, the Veteran did not report any symptoms consistent with acute or chronic CMV while in service. The symptoms of malaise, fatigue and cold and flu are utterly commonplace and non-specific. In conclusion, this examiner reiterated that positive CMV titers are commonplace in the general public. Hence, based on these additional medical nexus opinions obtained on remand, there is not the required linkage between this claimed disability and the Veteran's military service to warrant granting service connection. See Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). Since these May and June 2011 VA compensation examiners' unfavorable opinions were based on their reviews of the pertinent medical history and objective clinical evaluation of the Veteran, and are consistent with the other evidence of record and supported by sound medical rationale, they provide compelling evidence against the Veteran's claim that his CMV is due or dates back to his military service. Simply stated, these May and June 2011 VA examiners applied valid medical analysis to the significant facts of this case in reaching their conclusions that this disorder is unrelated to any complaints or treatment he received during his service. Nieves-Rodriguez, 22 Vet. App. at 297 (explaining that most of the probative value of a medical nexus opinion is derived from the reasoning and discussion of the underlying rationale, not from mere review of the claims file); see also Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the Veteran's position). In addition to this medical evidence, the Board also has considered the Veteran's lay statements insisting that he has suffered from CMV and its symptoms since his military service. And it is true that he is certainly competent to describe such symptoms as fatigue and common cold and flu-like symptoms based on his first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). See also Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (recognizing lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records, but also indicating the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence). That is to say, the Board must still weigh his lay statements against the medical and other evidence in the file to determine which is most probative. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Ultimately, given the specific type of disease at issue, CMV, the Veteran does not have the necessary medical training and expertise to ascribe the symptoms he is currently experiencing or has in the past to this disease - especially when, as here, the VA compensation examiners have explained that his symptoms are rather common place or garden variety and not indicative of this disease. CMV simply is not the type of condition that is readily amenable to just lay opinion concerning either its diagnosis or etiology. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease). Hence, the opinions of the May and June 2011 VA examiners govern since they have the proper factual foundation and predicate and, thus, are entitled to more probative weight in comparison to the Veteran's unsubstantiated allegations. Elkins v. Brown, 5 Vet. App. 474, 478 (1993); Swann v. Brown, 5 Vet. App. 177, 180 (1993). Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for CMV, claimed as malaise. So there is no reasonable doubt to resolve in his favor, and this claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER The claim for service connection for CMV, claimed as malaise, is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs