Citation Nr: 1303002 Decision Date: 01/28/13 Archive Date: 02/05/13 DOCKET NO. 08-19 923 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for sarcoidosis. ATTORNEY FOR THE BOARD C. R. Olson, Counsel INTRODUCTION The veteran served on active duty from November 1966 to October 1968, with subsequent National Guard service from October 1980 to February 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2007 and October 2007 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The case was previously before the Board in May 2012, when service connection for a respiratory disorder, to include chronic obstructive pulmonary disease, was denied. The Board remanded the claim for service connection for sarcoidosis for VA medical records, examination of the Veteran, and a medical opinion. The requested records were associated with the Veteran's electronic Virtual VA file in May 2012 and updated in July and November 2012. The Veteran was examined in June 2012. The examiner reviewed the Veteran's claims file and medical records and provided a medical opinion. The requested development has been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). The Board now proceeds with its review of the appeal. In March 2006, the Veteran was hospitalized for complaints including shortness of breath. Computerized tomography (CT) disclosed findings including coronary artery disease. The regulations provide a presumption of service connection for Vietnam veterans with coronary artery disease. See 38 C.F.R. § 3.309(e) (2012). The issue of entitlement to service connection for coronary artery disease has thus been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The evidence of record demonstrates that sarcoidosis is not related to active service. CONCLUSION OF LAW The criteria for entitlement to service connection for sarcoidosis have not been met. 38 U.S.C.A. §§ 101(16), 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking service connection for sarcoidosis, which he contends was manifested during service and diagnosed within the year following his release from active service. Sarcoidosis is chronic, progressive, systemic granulomatous reticulosis of unknown etiology, involving almost any organ or tissue, including the skin, lungs, lymph nodes, liver, spleen, eyes, and small bones of the hands and feet. It is characterized histologically by the presence in all affected organs or tissues of noncaseating epitheloid cell tubercles. Laboratory findings may include hypercalcemia and hypergammaglobinemia; there is usually diminished or absent reactivity to tuberculin and in most active cases, a positive Kveim reaction. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 1484 (28th ed., 1994). Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish service connection, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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. 38 C.F.R. § 3.303(d). In addition, sarcoidosis may be presumed to have been incurred during service if it first became manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.307, 3.309. Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (1997). A layperson is competent to identify such disorders as varicose veins, tinnitus, and flat feet. Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995). A layperson is not competent to identify medical conditions that require scientific, technical, or other specialized knowledge, such as in identifying bronchial asthma. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay statements do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony, however, is competent to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 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). Active military, naval, or air service includes any period of ACDUTRA during which the individual was disabled from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training (INACDUTRA) during which the individual was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24) (West 2002). An injury or disease incurred during active military, naval, or air service is deemed to have been incurred in the line of duty unless such injury or disease was a result of the person's own willful misconduct. 38 U.S.C.A. § 105 (West 2002); 38 C.F.R. § 3.301(a) (2012). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In addition, the Board must assess the credibility and weight of all the evidence to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Board has reviewed all of the evidence in the Veteran's claims file and Virtual VA file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Consequently, the following discussion will be limited to the evidence the Board finds to be relevant. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). Here, the evidence of record indicates that there is a current disability of sarcoidosis; accordingly, this element need not be further discussed. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. The issues are whether sarcoidosis was present during service, was diagnosed within one year of service, or is otherwise related to service. In the Veteran's March 2006 claim he stated that he had difficulty breathing. In July 2007 the Veteran submitted a statement wherein he argued that his sarcoidosis began during service when he complained of a pulmonary problem. He asserted that the service treatment records (STRs) showed that sarcoidosis had continually damaged his kidneys. In a November 2007 Notice of Disagreement, the Veteran asserted that sarcoidosis was diagnosed in 1969 by a private physician who was now deceased. The Veteran further asserted that the condition was manifested in Vietnam by complaints of stomach pain and fatigue, but that it was not detected at that time because it was rare and he was not tested for it. In a June 2008 Substantive Appeal, the Veteran reported being hospitalized in service for reports of tiredness and loss of appetite and that those symptoms in service were the same as his symptoms in 2006 when he was hospitalized by VA for sarcoidosis. The Veteran's STRs are silent regarding sarcoidosis. In a September 1966 RME, the clinical evaluation indicated that all systems were normal. In a September 1966 RMH, there were no complaints. STRs from October 1968 indicate the Veteran was hospitalized for three days. On admission, he reported feeling tired with decreased appetite and nausea for 10 days. Physical examination revealed questionably jaundiced sclera. The liver was palpable and tender. Urine was positive for bile. A Medical Corps physician diagnosed infectious hepatitis. The Veteran was treated accordingly and after three days, no symptoms were found. In the October 1968 service discharge RME, there was a normal clinical evaluation. The October 1968 RMH, the Veteran only reported dizziness, eye trouble, tooth and gum trouble, syphilis and gonorrhea, back trouble, and trouble sleeping. In an August 1980 RME, the Veteran reported having stomach pains while serving in Vietnam. The examiner noted there were stomach pains on active duty with no recurrence. In a July 1987 private medical record, it was noted that the Veteran was finishing a course of treatment for sarcoidosis. Private records thereafter indicate continuing sarcoidosis and treatment for the condition. In an October 1993 private record, the Veteran was hospitalized. The hospital report states that the Veteran had a history of documented sarcoidosis since July 1987. At that time, he presented with hypercalcemia and dyspepsia. A gastroscopy with biopsy showed sarcoidosis. The Board has reviewed the entire record. The relevant evidence of record includes service treatment records, private treatment records, VA treatment records and written statements from the Veteran. Service treatment records are entirely negative for any findings or symptomatology indicative of sarcoidosis. All pertinent findings, including abdomen, viscera and genitourinary system, were normal on the September 1966 examination for service and the October 1968 examination for separation from service. As discussed above, a service treatment record for October 1968 shows the Veteran complained of feeling tired and having decreased appetite and nausea, but this was diagnosed as infectious hepatitis and his response to treatment for that infection indicates a correct diagnosis. The report of the August 1980 examination for National Guard service shows the Veteran's genitourinary system (which includes the kidneys now affected by sarcoidosis) was normal. The only abnormality of the abdomen and viscera was a history of stomach pains while serving in Vietnam with a note that the Veteran occasionally had pains. However, the examiner indicated that there was a history of stomach pains with no recurrence. This report is evidence that there was no outstanding diagnosis of sarcoidosis and no continuity of sarcoid symptoms to connect that diagnosis to the Veteran's active service years before. In June 2008 submission, a private physician noted that he had been following the Veteran since 1987 for sarcoidosis. The physician noted that the Veteran had extensive disease involving virtually every organ system, including his kidneys. Old records prior to 1987 were not available, but the Veteran had had the disease for many years. The physician noted that, generally, sarcoidosis affects young people and the doctor strongly suspected the Veteran had it in service. In June 2012, the Veteran was afforded a VA examination. The claims folder was reviewed. Symptoms included persistent shortness of breath. The Veteran reported that he had flare-ups of fatigue with a lack of energy with weight loss. X-rays revealed fibrocystic sarcoidosis. It was noted that other organs were involved. The examiner noted that computerized tomography at a private hospital, in March 2006, disclosed small loculated right pleural effusion, chronic obstructive pulmonary disease with emphysematous bullae in both lung apices, bilateral apical pulmonary parencymal scarring, mild bilateral pulmonary fibrosis, cardiomegaly, and coronary artery disease. The examiner expressed the opinion that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted the 1968 STRs that diagnosed hepatitis, that there was no evidence that the Veteran was diagnosed or treated for sarcoidosis during service or within one year after his discharge from active duty, and there was no evidence of a diagnosis of sarcoidosis in 1969. The examiner also noted that the claims file showed a diagnosis of sarcoidosis in 1987, and although it was true that sarcoidosis affects young people, there was a lack of evidence of diagnosis before 1987, with a gap of 20 years since the Veteran was discharged from service. The Board finds that the evidence of record does not support a finding of service connection. First, there is a current disability as the evidence of record demonstrates diagnoses of sarcoidosis. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Second, the evidence does not demonstrate a diagnosis of sarcoidosis or symptoms of sarcoidosis - the 1968 STR was noted to be hepatitis. . See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Although the Veteran testified that he had stomach pains during service and that his symptoms were the same when he was hospitalized in 2006, the Board finds that this testimony is competent and credible in terms reporting his symptoms, but not competent regarding whether the ins-service symptoms were sarcoidosis. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). This is because such a determination of whether the Veteran's particular symptoms constitute a complex disorder such as sarcoidosis require medical expertise and knowledge that the Veteran has not alleged, and the evidence does not show, he has. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) ("When the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in that particular science, art, or trade to which the question relates are admissible in evidence.") (quoting Frye v. United States, 293 F. 1013, 1014 (1923)); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (noting that lay evidence may not be categorically dismissed as not competent regarding questions of medical etiology). Furthermore, sarcoidosis was not diagnosed within one year of 1968, the Veteran's discharge from active duty. 38 C.F.R. §§ 3.307, 3.309. It appears that the diagnosis came in the 1980s. Although the Veteran states that he had it as early as 1969, his statements on the August 1980 RME indicate that that assertion is not credible. Caluza, 7 Vet. App. at 511. Accordingly, the Board assigns it no weight. The 2008 private physician opinion is likewise accorded little weight. The physician opined that sarcoidosis affects young people and he strongly suspected the Veteran had it in service. This is does not provide a basis for a finding that the sarcoidosis was diagnosed within one year of service discharge as it is not certain and does not provide supporting rationale specific to the Veteran. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (noting that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); Sklar v. Brown, 5 Vet. App. 140, 145-46 (1993) (noting that the probative value of a medical opinion is diminished where the opinion is ambivalent). Moreover, although the Veteran had national guard service from 1980 to 1983, the evidence also does not establish that sarcoidosis was diagnosed within one year of 1984, the last possible period of ACDUTRA. See 38 U.S.C.A. §§ 101(24), 105; 38 C.F.R. § 3.301(a). For the same reasons as above, the Board finds the Veteran's testimony not credible and the physician's opinion not certain enough upon which to make a finding that the disease was present within one year of service discharge, either active duty or ACDUTRA. Finally, the evidence of record does not demonstrate a relationship between service and the currently diagnosed sarcoidosis. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. The 2012 VA examiner opined that sarcoidosis was less likely than not due to service, noting that there was in-service hepatitis, not sarcoidosis, and that there was a lack of evidence of sarcoidosis until the 1980s. The Board assigns this opinion weight as it was provided upon a review of the relevant medical records and provides a definitive opinion in conjunction with supporting rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining the probative value of a medical opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (noting that "[n]ot only must the medical opinion clearly consider direct service connection, it must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."); Sklar, 5 Vet. App. at 145-46. Accordingly, service connection is not warranted as the evidence of record does not support a relationship between the Veteran's sarcoidosis and service. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Duty to Notify and Assist The Board is required to ensure that the VA's duty to notify and duty to assist obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The notification obligation in this case was met by way of letters from the RO to the Veteran dated May 2006, June 2006, August 2007 and June 2010. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances of this case. All available private and VA records have been obtained. The Veteran has been afforded a VA examination and a medical opinion has been provided. That examination was adequate as it was provided upon a review of the relevant medical evidence, provided an etiological opinion, and provided supporting rationale. In addition, the Veteran has not made the RO or the Board aware of any other available evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any errors or deficiencies in the accomplishment of the duty to notify or the duty to assist have prejudiced him in the adjudication of his appeal. See Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In light of the denial of the appellant's claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the appellant under the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Because VA's duties to notify and assist have been met, there is no prejudice to the appellant in adjudicating this appeal. ORDER Service connection for sarcoidosis is denied. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs