Citation Nr: 1320069 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 11-03 104 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for sarcoidosis. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1980 to August 2002. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, which denied the benefit sought on appeal. The Veteran then perfected a timely appeal of this issue. In March 2011, the Veteran was afforded his requested hearing before a Decision Review Officer (DRO). A copy of the hearing transcript has been associated with the claims file. The RO certified this appeal to the Board in March 2012. Subsequently, additional lay evidence was added to the record. However, the Veteran waived his right to have the RO initially consider this evidence in a statement dated in August 2012. 38 C.F.R. §§ 20.800, 20.1304 (2012). The Veteran's Virtual VA paperless claims file was also reviewed and considered in preparing this decision, along with the Veteran's paper claims file. FINDING OF FACT The Veteran's sarcoidosis was not manifested during his active military service, is not shown to be causally or etiologically related to his active military service, and is not shown to have manifested to a degree of 10 percent or more within one year from the date of separation from the military. CONCLUSION OF LAW Service connection for sarcoidosis is not established. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. 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) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. VA's Duties to Notify and Assist Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform 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. This notice must be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty to assist notice letter have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A letter from the RO dated in November 2009 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The letter also provided the Veteran with information concerning the evaluation and effective date that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). The letter was provided prior to the initial RO adjudication of his claim in the March 2010 rating decision. Accordingly, VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. His post-service VA treatment records and his military enlistment examination have been obtained. The claims file does not present evidence that the Veteran is currently receiving disability benefits from the Social Security Administration (SSA) for the disorder currently on appeal. Therefore, the Board does not need to make an attempt to obtain these records. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. The Board acknowledges that the RO made several attempts to secure a copy of his STRs. After several searches, the RO determined that the records were unavailable in a Formal Finding of Unavailability dated in January 2010. The Veteran was informed of the unavailability of these records in a letter from the RO dated that same month. In this letter, the Veteran was afforded the opportunity to submit his own copies of the STRs or alternate documentation. The Veteran has stated throughout his appeal that he does not have copies of the STRs. Under these circumstances, the United States Court of Appeals for Veterans Claims (Court) has held that VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the Veteran's medical records have been destroyed." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) citing Russo v. Brown, 9 Vet. App. 46, 51 (1996); see Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, missing STRs, while indeed unfortunate, do not obviate the need for the Veteran to have some other evidence of a link between his current disorder and his active military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)); see, too, Russo v. Brown, 9 Vet. App. 46 (1996). Cf. Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996); Arms v. West, 12 Vet. App. 188, 194-95 (1999). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. The record indicates that the Veteran was afforded a VA medical opinion in February 2012, the results of which have been included in the claims file for review. The medical opinion involved a review of the claims file, and an opinion that was supported by sufficient rationale. Therefore, the Board finds that the VA medical opinion is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The Board notes that while a VA medical opinion has been afforded to the Veteran, a VA examination of the Veteran has not been obtained. However, the Board finds that the evidence, which does not reflect competent evidence showing a nexus between service and the disorder at issue, warrants the conclusion that a remand for an examination is not necessary to decide the claim. See 38 C.F.R. § 3.159(c)(4). As post-service treatment records provide no basis to grant this claim, and in fact provide evidence against this claim, the Board finds no basis for a VA examination to be obtained. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA Secretary to make a decision on the claim. Simply stated, the standards of McLendon are not met in this case. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Service Connection The Veteran seeks service connection for sarcoidosis. To establish direct service connection, the record must contain: (1) medical evidence of a current disorder; (2) medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease; and, (3) evidence of a nexus between the current disorder and the in-service disease or injury. In other words, entitlement to service connection for a particular disorder requires evidence of the existence of a current disorder and evidence that the disorder resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including sarcoidosis, will be presumed if they manifest to a compensable degree within one year following the active military service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. Feb. 21, 2013). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see 38 C.F.R. §§ 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. As noted above, the first element of service connection requires medical evidence of a current disorder. Here, a current diagnosis has been established. In private treatment records dated in September 2009, just prior to the Veteran filing his claim in October 2009, the Veteran was diagnosed with sarcoidosis. Thus, the Veteran has satisfied the first element of service connection. As stated above, the second element of service connection requires medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease. In this regard, the Veteran's June 1980 military enlistment examination is of record, and does not document any problems related to sarcoidosis. At his DRO hearing, the Veteran testified that his sarcoidosis began during the late 1990s (i.e., the last few years of his active duty). The Veteran testified that during this time, he was stationed in Italy. The Veteran testified that he believed his sarcoidosis may be due to environmental exposures from Italy. The Veteran's DD -214 form does not document a Military Occupational Specialty (MOS) or locations in which the Veteran would have been exposed to hazardous environmental dangers during his active military service. The Board notes that the Veteran's remaining STRs are not of record. The RO made several attempts to obtain the Veteran's STRs. After several searches, the RO determined that the records were unavailable. Under these circumstances, the Court has held that VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision...." Cromer, 19 Vet. App. at 217-18, citing Russo, 9 Vet. App. at 51; see Cuevas, 3 Vet. App. at 548; O'Hare, 1 Vet. App. at 367. In order to compensate for his missing STRs, the Veteran testified at a DRO hearing in March 2011. At the hearing, the Veteran indicated that during his active military service, he experienced weakness, fatigue, and shortness of breath. The Veteran stated that he was treated for these symptoms during his active military service. The Veteran also testified that he experienced these symptoms following his military discharge, but he did not seek formal treatment until 2009. The Veteran's ex-wife also testified at the DRO hearing that the Veteran's health declined during their marriage, while he was on active duty. The Veteran also submitted two buddy statements from Veterans who were in the U.S. Air Force with the Veteran and described the Veteran's shortness of breath during his active military service and since that time. The Veteran also submitted two family statements dated in 2012, which described the Veteran's declining health in the "past few years." Based on these lay assertions, VA obtained a VA medical opinion in February 2012. The VA examiner, following a review of the claims file to include the hearing transcript and lay statements, concluded that the Veteran's current sarcoidosis is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that while the Veteran claims to have had some pulmonary symptoms while in service, there is nothing to support that the pulmonary symptoms were related to sarcoidosis. The examiner stated that he was not doubting the validity of the lay statements, which described the Veteran's breathing problems in service. The examiner indicated that the Veteran may well have had such issues. However, the examiner pointed out that the Veteran's sarcoidosis was diagnosed seven years after his active military service. The examiner stated that there is nothing to indicate that the sarcoidosis existed within one year of service. The examiner indicated that if the Veteran had significant breathing issues post-service, one can assume that he would have sought medical care, and a simple Chest X-ray (CXR) would have been ordered. However, as the present lack of documentation exists, the examiner found that it would be an extreme stretch and unreasonable to opine that the Veteran's sarcoidosis existed within one year of service. The claims file, including the post-service treatment records, does not contain any objective medical information that would refute this medical opinion. Thus, the Veteran's contentions notwithstanding, none of the physicians who have had occasion to evaluate or examine him or anyone else for that matter, have attributed his current sarcoidosis to his active military service. Additionally, as described by the VA examiner, the first post-service relevant complaint of sarcoidosis was in private treatment records dated in September 2009. Again, the Veteran's active duty ended in August 2002. This lengthy seven-year period without treatment for the disorder weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (holding that service incurrence may be rebutted by the absence of medical treatment of the claimed disorder for many years after the military discharge). The Board notes that the Veteran reports continuous symptomatology since his active military service. However, the Veteran's contentions are not supported by the medical evidence of record. As stated above, the earliest pertinent post-service medical evidence associated with the claims file is dated from 2009, seven years after the Veteran's military separation in 2002. At his DRO hearing, the Veteran testified that he did not seek treatment until 2009. This does not establish continuity of symptomatology during and since the Veteran's active military service. Thus, the Board finds that the medical evidence does not establish a "chronic disorder." 38 C.F.R. § 3.303; see Walker, 708 F.3d at 1331. The Veteran's service connection claim cannot be granted on this theory of entitlement. Additionally, the Board finds that the Veteran is not entitled to presumptive service connection for sarcoidosis. As stated above, the earliest post-service medical treatment records are dated from 2009, and the Veteran was separated from the active duty in 2002. Sarcoidosis was not manifested within one year of the Veteran's military discharge. Thus, the presumption for service connection for chronic diseases does not apply. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). In reaching this decision, the Board has considered the lay statements support of the Veteran's claim. The Board acknowledges that the Veteran, and his friends and family, are competent, even as laypersons, to attest to factual matters of which they have first-hand knowledge, e.g., an injury or observable symptoms. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence is one type of evidence that must be considered, and that competent lay evidence can be sufficient in and of itself. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), and in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a disorder when: (1) a layperson is competent to identify the medical disorder (noting that sometimes the layperson will be competent to identify the disorder where the disorder is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Id. Here, the Veteran, and his friends and family, are competent and credible to report that the Veteran experienced fatigue and shortness of breath both during and since his active military service. However, the Board must still weigh his lay statements against the medical evidence of record. See 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")). Additionally, the claims file only contains one medical opinion, in which the VA examiner reviewed the claims file, including the lay statements, and provided a negative medical nexus opinion. See Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996); see also Macarubbo v. Gober, 10 Vet. App. 388 (1997) The Board notes that the only contrary opinion of record comes from the Veteran himself, who believes there is a link between his current sarcoidosis and his military service. Although the Veteran and his service comrades are competent and credible to related the physical symptoms he experienced while still on active duty, as laymen they are not competent to assert a causal link between these symptoms and the sarcoidosis which became manifest several years post service. For the reasons set forth above, the Board finds that the lay statements contending that the Veteran's sarcoidosis symptoms have been present since his active military service lack significant probative value. All other evidence of record is unfavorable to the claim for service connection for sarcoidosis. The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim, and thus that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's claim of entitlement to service connection for sarcoidosis is not warranted. ORDER The claim for service connection for sarcoidosis is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs