Citation Nr: 1305690 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 10-12 390 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for an immune deficiency disorder, claimed as secondary to exposure to ionizing radiation. 2. Entitlement to a rating in excess of 30 percent for defective hearing prior to October 31, 2003. REPRESENTATION Appellant represented by: Arkansas Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD A. M. Clark, Counsel INTRODUCTION The Veteran served on active duty from March 1954 to March 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In August 2012, the Veteran and his wife presented testimony at the RO at a Board hearing, chaired by the undersigned Acting Veterans Law Judge, via videoconference. A transcript of the hearing is associated with the claims file. This case was remanded by the Board in May 2011 and September 2012. In May 2011 the Board remanded the claim in order to afford the Veteran a BVA hearing. Such was afforded to the Veteran in August 2012. In September 2012 the Veteran's claim was remanded in order to afford him a VA examination. The Veteran was provided a VA examination in November 2012. The Board finds that the requested development has been completed. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to a rating in excess of 30 percent for defective hearing prior to October 31, 2003, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran was an on-site participant in the atmospheric detonation of a nuclear device, and is a radiation-exposed veteran for VA purposes. 2. The Veteran's claimed immune deficiency disorder is not a disorder that is presumed to be due to exposure to ionizing radiation, nor is it a radiogenic disease. 3. An immune deficiency disorder is not currently demonstrated in the record. CONCLUSION OF LAW An immune deficiency disorder was not incurred in or aggravated by active duty, nor may it be presumed to be the result of exposure to ionizing radiation. 38 U.S.C.A. §§ 1110, 1112, 1116, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.309, 3.311 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Assist and Notify Before addressing the merits of the claim, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. With respect to the claim for an immune deficiency disorder, the Veteran was sent a letter in August 2004 that addressed all notice elements and was issued prior to the initial RO decision in this matter. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. In July 2006 the Veteran was additionally notified of how VA determines a disability rating and effective date if service connection is awarded. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, after the Veteran was provided the July 2006 notice, the matter was readjudicated in a December 2012 supplemental statement of the case. Therefore, adequate notice was provided to the Veteran prior to the transfer and recertification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records and post-service VA treatment records. Moreover, the Veteran's statements and those of his friends and family, in support of his claim, are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has additionally reviewed the Veteran's VA Virtual claims file. Discussion of the Veteran's August 2012 Acting Veterans Law Judge (AVLJ) hearing is also necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. Entitlement to service connection for an immune deficiency disorder was identified as an issue at the hearing. Sources of evidence relevant in this regard were identified during this process. The case was subsequently remanded in order to provide the Veteran with a VA examination. The Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Next, a VA examination and opinion was obtained in November 2012 to address the nature and etiology of the Veteran's claimed immune deficiency disorder. 38 C.F.R. § 3.159(c) (4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination and opinion obtained are more than adequate. The VA examiner considered all of the pertinent evidence of record, to include his service treatment records, personal statements and history, and provided detailed rationale for the opinion stated. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). The VA examiner considered all of the pertinent evidence of record and could not find a disease process or disability upon which to base a diagnosis with respect to the immune system complaints. The Veteran was afforded objective testing. Accordingly, the VA's duty to assist with respect to obtaining a VA examination with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C.A. § 1110 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). 'In the absence of proof of a present disability there can be no valid claim.' See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, the Veteran is seeking entitlement to service connection for an immune deficiency disorder that he asserts is attributable to ionizing radiation exposure incurred while participating in Operation WIGWAM and Operation REDWING. As will be discussed in more detail below, the evidence of record reflects that the Veteran does not have a current diagnosis of an immune deficiency disorder. A review of the Veteran's service treatment records reflects no treatment for an immune deficiency disorder. More importantly, a review of the post-service evidence reveals that the Veteran has not been diagnosed as having an immune deficiency disorder. As set forth above, one of the elements necessary for service connection is medical evidence of a current disability. The United States Court of Appeals for Veterans Claims (Court) has held that there can be no valid claim without proof of a present disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The existence of a current disability is the cornerstone of a claim for VA disability benefits. See Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997). The Board has considered an April 2003 private treatment record which noted that the Veteran had a possible immune deficiency. Additionally, an August 2003 letter from the Veteran's private treating physician noted concern that the Veteran would continue to have breaks in his immunity with life-threatening illnesses such as recurrent meningitis. Significantly, a diagnosis of an immune deficiency disorder was not diagnosed at that time. Moreover, testing in December 2004 reflected that there was insufficient data to support an immunodeficiency disorder. The Veteran underwent a November 2012 VA examination to specifically determine whether he has an immune deficiency disorder. After considering the Veteran's claims file, his history, and conducting a medical examination, the VA examiner determined that it was less likely than not that the Veteran suffers from an immune deficiency due to radiation exposure while in the military. The VA examiner noted that the Veteran had been evaluated for an immune disorder in 2005 by Infectious Disease specialists at the VA and deemed not to have immune deficiency with various follow-up testing. He considered that the Veteran had experienced meningitis in the past and stated that the etiology was found to be a shunt leakage from a prior surgery and was treated. The VA examiner noted that the Veteran's episodes of pneumonia were isolated and without further recurrences with an isolated viral or bacterial etiology. After reviewing the Veteran's medical records the VA examiner noted that the Veteran had required only 2 antibiotics (2008/2012) for acute upper respiratory infections from 2012 back to 2002. He stated that this suggested that the Veteran has an intact immune system and this would not be unexpected for a man the Veteran's age with a normal immune system. The VA examiner stated that to have an immune deficiency, one would manifest complex frequent prolonged recurrent infections and atypical infections (TB, fungus, etc.). He stated that this was not found historically based on the Veteran's records and would suggest an intact immune system as any infection that he does encounter usually resolves over the expected period of time with a normal immune system. The VA examiner stated that the few infections the Veteran's has had are either simple viral or bacterial etiologies and resolve with treatment. Regarding digestive complaints, the Veteran denied any intestinal symptoms, chronic upper or lower GI condition, or symptomatology. The VA examiner considered the complaints asserted by the Veteran's wife that the Veteran has food intolerance to peas, chicken, strawberries or honey. The VA examiner looked at the Veteran's records for the past 10 years and noted the evidence lacked GI complaints of any chronic GI condition. He noted that the Veteran had had a colonoscopy in 2005 at which time a polyp was removed and stated that this was likely expected for a man of the Veteran's age range. He further noted that a workup in 2005 deemed no evidence of an immune disorder and his episodic symptoms are caused by simple respiratory infections (viral/bacterial). The VA examiner indicated that the Veteran's digestive complaints are simply specific food intolerance as an etiology without evidence of chronic upper or lower GI condition. He concluded his opinion by stating that because the Veteran does not have an immune deficiency disorder, there would be no causation nor etiology relationship to his service-connected disorders or to the military. He noted that the Veteran's present symptoms have etiologies and are not related to an immune deficiency from ionized radiation exposure. The VA examiner stated that lab work suggests an intact hematologic system to fight any infections. He indicated that the Veteran's history is not atypical regarding infections in a normal immune system of his age and that no chronic GI disorder is found at this time. The requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, however, there is no evidence of a diagnosis of an immune deficiency disorder during the period under appellate review. The Board finds significant that despite his treatment history, no disability has been diagnosed. The Board acknowledges that the Veteran is competent to indicate he has been sick on various occasions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). However, he is not competent to ascribe these symptoms to a particular diagnosis of an immune deficiency disorder, or attribute his current symptoms to his active duty service. Rather, physical evaluation and diagnostic testing (such as performed by the November 2012 VA examiner) are required to diagnose an immune deficiency disorder. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (certain disabilities are not conditions capable of lay diagnosis). But see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (clarifying that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and service or a service-connected disability). The Board finds he is not competent to self-diagnose an immune deficiency disorder. Because there is no diagnosis of an immune deficiency disorder, or other competent evidence the Veteran has this particular condition, there is no possible means of attributing this non-existent condition to his 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.'). The Board has also considered the Veteran's claim for an immune deficiency disorder based on radiation exposure. Establishing service connection for a disorder as due to ionizing radiation exposure during service can be shown in three different ways. Ramey v. Brown, 9 Vet. App. 40 (1996). First, a radiation-exposed veteran may be presumptively service-connected for any of the specific diseases listed in 38 C.F.R. § 3.309(d), which encompass a variety of different forms of cancer. Service connection may also be established if the evidence shows the existence of any other 'radiogenic' diseases, such as any form of cancer listed under 38 C.F.R. § 3.311(b)(2) or other claimed diseases considered to be radiogenic through a showing of competent scientific or medical evidence. 38 C.F.R. § 3.311(b)(4). Although the Board recognizes the Veteran's participation in Operation WIGWAM and Operation REDWING, and that he is a radiation-exposed veteran as defined by 38 C.F.R. § 3.309(d)(3)(i) he is not claiming a disorder presumed to be related to such exposure, nor does the evidence indicate the claimed disorder is a radiogenic disease. Significantly, as the Veteran does not have a diagnosis of an immune deficiency disorder, service connection is not warranted. ORDER Service connection for an immune deficiency disorder, claimed as secondary to exposure to ionizing radiation, is denied. REMAND In a July 2011 rating decision, the RO effectuated a grant of an earlier effective date for the Veteran's service-connected defective hearing. The RO granted a 30 percent rating, effective prior to October 31, 2003, in the first instance. In a July 2011 statement, the Veteran indicated that he was protesting the 30 percent disability assigned. The Veteran's statements reflect disagreement with the July 2011 rating decision that assigned a 30 percent disability rating for his service-connected defective hearing, prior to October 31, 2003. The Board finds that the July 2011 communication is a notice of disagreement as to the July 2011 rating decision. See 38 C.F.R. 20.201. When there has been an initial RO adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case. See 38 C.F.R. § 19.26. Thus, remand for issuance of a statement of the case on this issue is necessary. Manlincon v. West, 12 Vet. App. 238 (1999). However, this issue will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) A statement of the case, containing all applicable laws and regulations, on the issue of entitlement to a rating in excess of 30 percent for defective hearing prior to October 31, 2003, must be issued, and the Veteran should be advised of the time period in which to perfect his appeal. Only if the Veteran's appeal as to this issue is perfected within the applicable time period, then such should return to the Board for appellate review. The Appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs