Citation Nr: 1216303 Decision Date: 05/07/12 Archive Date: 05/16/12 DOCKET NO. 10-00 702 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for systemic lupus erythematosus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Heneks, Counsel INTRODUCTION The Veteran served on active duty from May to July 2001 and from February 2003 to March 2004. She served in Kuwait from April 2003 to February 2004. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa, which denied the benefit sought on appeal. In April 2010, the Veteran presented testimony at a hearing conducted by the use of video conferencing equipment at the Des Moines RO before Kathleen K. Gallagher, a Veterans Law Judge (VLJ) sitting in Washington, D.C. A transcript of this hearing is in the Veteran's claims folder. In March 2012, the Board requested a medical expert opinion from the Veterans Health Administration (VHA). An opinion which is adequate upon which to base a determination was obtained in April 2012. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. Systemic lupus erythematosus has been shown to be causally or etiologically related to the Veteran's military service. CONCLUSION OF LAW Systemic lupus erythematosus was incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Because the claim on appeal is being granted, there is no need to review whether VA's statutory duties to notify and assist are fully satisfied as any error would be non-prejudicial. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). LAW AND ANALYSIS Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). The Veteran contends that she began to develop symptoms during service that were later diagnosed as lupus. The Veteran testified that she developed joint pain while serving in Kuwait. She also asserts that her diagnosis of lupus is related to the vaccinations she received during service. In considering all of the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for systemic lupus erythematosus (hereinafter lupus or SLE). The service treatment records showed that she received a small pox and series of anthrax vaccinations in 2003. A January 2004 post-deployment service treatment record reflected that the Veteran reported having then or during deployment swollen, stiff, or painful joints and chest pain or pressure. It was noted that she was exposed to sand and had left hip pain. February 2004 reports of medical examination and history indicated that the Veteran reported bronchitis, foot trouble from her desert boots, swollen or painful joints, and pain or pressure in the chest. Upon examination, she had a right posterior heel mass and mild painful hip. In August 2006, the Veteran was evaluated by Dr. M.C. It was noted that she had left-sided pleuritic chest pain and mild shortness of breath for about a week. The Veteran had developed a small blister on the left shoulder and the blistering on her hand had improved. She continued to have pain in most of her joints, especially the knees. Dr. M.C. suspected a connective tissue disease like SLE. In October 2006, Dr. M.C. referred the Veteran to Dr. M.J.F. The Veteran was noted to have had some intermittent arthralgias for approximately two years involving the wrists, knees, and feet. Either one or a number of the areas would swell up and then calm down. Importantly, the Veteran never really sought medical attention for this problem until she developed the onset of left-sided pleuritic chest pain and complained of some increased arthralgias. Following examination, Dr. M.J.F. provided an impression indicating that he shared Dr. M.C.'s concern that the Veteran may well be developing lupus. He diagnosed an undifferentiated connective tissue disease with her disease manifestations including a positive ANA, positive ds DNA, pleurisy with small pleural effusion, arthralgias, and evidence of antiphospholipid syndrome. The Board observes that there are two VA examinations of record dated in September and December 2008 that are both unfavorable to the Veteran. The December 2008 VA examiner seemed to put a lot of emphasize on the lack of reports of joint pains and chest pain on the May 2005 and May 2006 annual medical certifications. However, the Veteran reported to Dr. M.J.F. that she did not seek treatment for her arthralgias until they worsened in 2006 but did report that she had them for about two years prior to her initial visit in 2006. The Board finds the Veteran's statements that she had arthralgias that began during her service in Kuwait and continued through her initial diagnosis in 2006 to be competent and credible. Moreover, the VA examiners did not specifically comment on the relationship between the in-service vaccinations and any relationship to the development of lupus. Accordingly, in March 2012 the Board sought an expert medical opinion to address these questions. In April 2012, an opinion from a VA rheumatologist was obtained. The examiner reviewed the Veteran's claims file and noted that she developed joint pains while serving in Kuwait. The examiner commented that from the history and physical examination reports in the claims file and overall review of her medical history, the Veteran has clinical features typical of SLE, including polyarthralgias/polyarthritis, photosensitive skin rash, pleuritic chest pain, antiphospholipid antibody syndrome, positive ANA, and positive double-stranded DNA. The examiner stated that the constellation of signs and symptoms and the positive labs fulfill the criteria for a diagnosis of SLE. The examiner noted that a diagnosis of SLE is made if four or more of the clinical manifestations are present, either serially or simultaneously, during any interval of observations. In the Veteran's case, the disease began with early onset of joint pains followed by pleuritic chest pain and skin rash and later on antiphospholipid antibody syndrome, which can be secondary to lupus. The examiner opined that it is therefore reasonable that the Veterans SLE started during her period of service and evolved over two to three years before her final diagnosis in 2006. The examiner added that after reviewing the literature regarding possible use of vaccinations such as anthrax, smallpox, and autoimmune disease, there is no literature to support the connection between SLE and anthrax and smallpox vaccinations at this time. The Board affords the opinion of the April 2012 VA expert great probative value. The examiner based the opinion on a complete review of the claims file and addressed the Board's questions. The examiner supported his opinion with a complete rationale and it was based on his expertise as a rheumatologist. Importantly, the opinion is consistent with the evidence of record which suggests that the Veteran's lupus began with arthralgias during her service in Kuwait and then progressed with the clinical manifestations of pleuritic chest pain, skin rash, and then antiphospholipid antibody syndrome. Accordingly, the Board finds this opinion persuasive. In conclusion, there is a probative and persuasive medical opinion which states that the Veteran's first clinical manifestations of lupus began during her active service. Accordingly, service connection is granted. 38 C.F.R. § 3.303. ORDER Entitlement to service connection for systemic lupus erythematosus is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs