Citation Nr: 1320135 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-33 747 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for angioedema of the lips. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran had active service from June 1999 to August 1999 with additional service in the Army Reserve from March 1999 to June 1999 and from 2001 to 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified at a hearing before the undersigned Veterans Law Judge by videoconference from the RO in June 2011. A transcript of the hearing has been associated with the claims file. In September 2011, the Board remanded the claims for service connection for angioedema of the lips and for photodermatitis for further development. In January 2013, the RO granted service connection for photodermatitis, claimed as chronic urticaria, sunburn, dermatitis, photosensitivity, allergic reaction and angioedema. Therefore, this issue is no longer on appeal before the Board. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. Angioedema of the lips was not noted at entry on active duty. 2. The presumption of soundness is rebutted by clear and unmistakable credible evidence of the onset and treatment for angioedema of the lips prior to active duty service. 3. The presumption of aggravation is rebutted by clear and unmistakable evidence of no increase in severity and no aggravation of angioedema of the lips during active service. CONCLUSION OF LAW The criteria for service connection for angioedema of the lips are not met. 38 U.S.C.A. § 1101, 1110, 1111, 1112, 1132, 1137 (West 2002); 38 C.F.R. § 3.303, 3.304, 3.306, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The notice requirements apply to all five elements of a service connection claim. The five elements are: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Where complete notice is not timely accomplished, an error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In December 2006, the RO provided notice that did not meet all the requirements. The notice explained the Veteran's and VA's respective responsibilities to obtain relevant evidence. Although the file copy of the notice refers to an enclosure entitled "What the Evidence Must Show," the enclosure is not in the file. In September 2011 after the initial decision on the claim, the Appeals Management Center (AMC) provided an additional notice with the criteria for service connection and the process for assignment of a rating and effective date. The AMC readjudicated the claim in a January 2013 supplemental statement of the case. Therefore, the Board concludes that the timing and notice errors are not prejudicial because the Veteran received an adequate notice with an opportunity to respond. The Board also concludes VA's duty to assist has been satisfied. All indentified and available private medical records have been associated with the claims file. Despite several attempts, the RO was not able to obtain service treatment records from the archives or the Veteran's reserve unit. The RO informed the Veteran in correspondence in November 2007. Nevertheless, the Veteran submitted and the RO obtained some service records including the record of an enlistment physical examination in October 1998, a periodic physical examination in August 2005, line of duty reports in 2001 and 2006, and a record of assignment of restriction of duty in August 2005. The duty to assist also includes providing a medical examination or obtaining a medical opinion when it is necessary to make a decision on a claim. The Veteran underwent a VA examination in October 2011 and an additional VA medical opinion in October 2012. The results have been included in the claims file. The examinations involved summary of the history from a review of the record and from reports by the Veteran, a thorough clinical examination in compliance with regulations and protocols, and opinions on the etiology of the disability. The Board concludes that the examination was performed by a qualified physician with appropriate consideration of the history and clinical observations. Therefore, the Board finds that the examinations are adequate. 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 finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim. Additionally, the Board remanded the claim in September 2011 for additional development, and the Board concludes that there has been substantial compliance with the instructions in the remand. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The AMC provided an adequate notice, requested any additional evidence from the Veteran, requested and obtained service personnel records, and obtained a VA examination and opinion as directed. Following the development, the AMC issued supplemental statement of the case in January 2013 with an appropriate opportunity to respond. The Board finds that the AMC substantially complied with the mandates of its remand. See Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). Therefore, the Board will proceed to review and decide the claim based on the evidence that is of record. II. Analysis In a December 2006 informal claim, the Veteran reported her disability as photodermatitis. In a formal claim the same month, the Veteran separately listed the following symptoms and diagnoses as noted by her attending physicians: chronic idiopathic urticaria, angioedema, sunburn/allergy reaction to the sun; dermatitis, and photosensitivity. Photodermatitis is an abnormal state of the skin in which exposure to light is an important factor. Dorland's Illustrated Medical Dictionary, 1430 (30th Ed. 2003). Urticaria is a vascular reaction in the upper dermis, usually transient, consisting of localized edema caused by dilatation and increased capillary permeability with wheals. Angioedema is the same physiological response in the deep dermis or subcutaneous or submucosal tissues; also called hives. Id. at 1994. In an October 2008 letter, one of the Veteran's attending dermatologists noted that the photodermatitis and urticaria are two different disorders. In the November 2007 rating decision, following a review of the medical records to that date the RO characterized the disabilities as photodermatitis and angioedema of the lips. In a June 2011 hearing, the Veteran stated that the swelling of her lips was one symptom of her reaction to sunlight. After review of the file, the Board concurs with the RO's characterization of the claims as shown on the first page of this decision. As the RO has granted service connection for photodermatitis, the Board will address the claim for angioedema or urticaria on the merits. The Veteran served on active duty for two months in training as a U.S. Army postal clerk with subsequent service in the Army Reserve. She contends that her angioedema of the lips first manifested on active duty. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (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). A disease must be shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge from service. 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases may be presumed to have been incurred in or aggravated by service for veterans who served 90 days or more of continuous service during a period of war or after December 31, 1946. See 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic. Establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In this case, the claim being decided is not listed as a chronic disability under 38 C.F.R. § 3.309(a) nor does the Veteran have the required continuous active service. Therefore, the option of establishing service connection through presumption or continuity of symptomatology since service is not available in this case. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. See 38 U.S.C.A. §§ 1111, 1132 (West 2002); 38 C.F.R. § 3.304(b) (2012). To rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2002; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Lay statements by a veteran concerning a preexisting condition alone are not sufficient to rebut the presumption of soundness. See Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a preexisting condition). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) [noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence"]. It is an "onerous" evidentiary standard, requiring that the pre-existence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. §§ 3.304, 3.306(b) (2012). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of a disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2012). A finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a pre-existing disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306-7 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). An October 1998 enlistment physical examination is silent for any skin or lip symptoms or abnormalities. In statements in October 2011, two friends noted that they knew the Veteran in high school, that they participated in outdoor activities, and that the Veteran had no abnormal effects or used any medication. In a statement in March 2012, an Army Sergeant First Class noted that he was involved in recruiting the Veteran and confirmed that no abnormalities or pre-existing conditions were noted on the enlistment physical examination. The Veteran submitted records of treatment prior to active service by a private primary care physician and a consulting physician. In July 1997, the primary care physician noted the Veteran's report of a history of once per year episodes of itchy swollen lips well treated with steroid injections. On examination, the physician noted some incipient pallor and edema of the lips and no other lesions or symptoms in any other part of the body. Later the same month, the Veteran experienced another episode of swollen lips. The Veteran reported that she was not aware of any contact with an allergen but the physician diagnosed an allergic reaction and referred the Veteran to an allergist. In August 1997, a private allergist noted the Veteran's report of recurrent lip swelling for the past three to four years. The physician noted that the lesions were angioedema only involving both lips that leave behind normal skin when resolved. The physician diagnosed chronic recurrent idiopathic urticaria/angioedema of the lips and that testing ruled out common food allergies. The physician prescribed certain medication and substance avoidance but did not make any comment or recommendations regarding exposure to sunlight. In May 2009 statements, two fellow soldiers noted that they participated in Reserve training with the Veteran in April and May 1999 that included outdoor activities. The soldiers noted that the Veteran had several episodes of sunburn and swelling of the lips that required treatment at a military clinic. As noted above, the RO was unable to recover records of treatment at military clinics in 1999. Personnel records contained line of duty reports and profiles that showed that the Veteran had a sunburn and photodermatitis on active duty for training in 2001 and swelling of the lips and face on inactive duty training in 2006. In an August 2005 physical examination, the Veteran reported that she was seeing a private physician for treatment of a recurrent rash. The same month, a Command Surgeon's report noted that the Veteran experienced a light sensitive rash with angioedema that had been present intermittently since age 15. The Surgeon directed the Veteran to provide reports of private treatment for the disorders. The Veteran identified several physicians who provided care for the allergic reactions from 2001 to 2011. In July 2001, the primary care physician who had treated the Veteran in 1997 noted that the recurrent episodes of allergic edema of the lips were caused by excessive exposure to the sun and heat. The Veteran subsequently received treatment from a university dermatologist from 2001 to December 2012. In May 2001, the dermatologist concurred in the diagnosis of allergic edema of the lips. Primary care physicians from 2003 to 2005 additionally noted a rash on the upper extremities and chest. In several notes in 2005, the dermatologist also noted a rash on the arms and chest after exposure to sunlight. In an October 2005 letter, the dermatologist distinguished between the photosensitive rash and the chronic urticaria manifesting as swelling of the lips. In another letter one week later, the dermatologist noted, "We should be very clear that [the Veteran] has had chronic urticaria for years but this photosensitivity came up while she was serving in the military." In February 2006, the dermatologist noted surface blisters on the lips that he attributed to photosensitivity. In September 2007, the dermatologist noted the Veteran's report of an allergic reaction causing swelling of the lip and that the cause was not clear and could be food or the sun. In October 2008, the dermatologist noted that the surface plaques on the face and neck were caused by photosensitivity and not urticaria and again confirmed that the two are completely different disorders. In June 2011, the Veteran submitted additional evidence including service personnel documents of counseling in April 2007 for separation from the Reserve because of medical unfitness due to the photosensitivity disorder. In April 2011 letter, the dermatologist again noted that the Veteran experienced photodermatitis in which she developed red plaques in sun-exposed areas of the face and neck that are itchy, last for several days, and resolved after steroid injections and sun avoidance. He again noted that the disorder first manifested during military service. In a June 2011 Board hearing, the Veteran stated that the photosensitivity started in military training in 1999. The Veteran stated that the notations in medical records that refer to a rash since age 15 were episodes of food allergies that caused urticaria - a different issue from photosensitivity. The Veteran stated her belief that the swelling of the lips is another symptom of photodermatitis that also happened at the same time. In September 2011, the Board remanded the claims for the RO/AMC to provide adequate notice, to provide the Veteran the opportunity to submit or identify additional evidence, and to obtain a VA skin examination. In October 2011, a VA physician noted a review of the claims file including the medical and lay evidence and accurately summarized the history of diagnosis and treatment for angioedema of the lips and photodermatitis. Referring to the 1997 private primary care records, the VA physician noted that the treatment for angioedema of the lips prior to service did not include a generalized skin condition or rash. The skin reaction to the sun that started in service included the rash and sun exposed areas of the lips. The physician concluded that the photosensitivity features were suggestive of cutaneous vasculitis with redness, raised bumps, itching, and burning of the skin. No symptoms were observed during the examination. The physician noted that photosensitivity of the skin is a separate disorder from angioedema of the lips. The photosensitivity started during military service and requires constant medication and sun avoidance. The angioedema of the lips predated military service and was not aggravated by service but does recur intermittently. Later in October 2012, another VA physician reviewed the report and determined that the medication used by the Veteran for treatment of the photodermatitis was an anti-inflammatory medication and not a corticosteroid. In January 2013, the RO granted service connection for photodermatitis. The Board concludes that angioedema of the lips is not warranted. The weight of credible evidence is that this disorder is separate from photodermatitis even though the latter may also present symptoms of surface lesions on the lips. The medical definitions show that the disorders manifest as different physiological responses: surface irritation from light exposure vice subcutaneous vascular reaction. Moreover, the private dermatologist in 2005 and the VA examiner in 2011 both noted the same conclusion. The Veteran stated her belief that the recurrent swelling of her lips was a symptom of photodermatitis. The Board places greater probative weight on the conclusions of the medical examiners who distinguished her symptoms in this regard from those associated with photodermatitis. Nevertheless, any lip symptoms associated with photodermatitis are contemplated under the rating criteria for that disorder, and the Veteran has not expressed disagreement with the initial rating. The angioedema of the lips, also diagnosed as a feature of chronic urticaria, was not noted at the time of entry on active duty. Therefore the presumption of soundness attaches. Nevertheless, the Board concludes that there is clear and unmistakable credible evidence that the disorder pre-existed active service and was not aggravated by service. The Veteran, the Army recruiter, high school friends, and fellow soldiers are both competent and credible to report on their observed symptoms and experiences. The recruiter's statement is cumulative in that he confirmed the absence of a notation of any abnormality at the time of enlistment and entry on active duty. The high school friends are credible but their observations of the absence of the Veteran's symptoms in school pre-dated and were inconsistent with the Veteran's primary care physician who noted symptoms of angioedema of the lips in 1997. The physician also noted the Veteran's reports of the symptoms for three to four years earlier. The Board concludes that the records of private care by two physicians in 1997 are clear and unmistakable evidence of angioedema of the lips that pre-existed active service and was not caused by sun exposure. The evidence successfully rebuts the presumption of soundness. The burden of proof remains with VA to show that the angioedema of the lips was not aggravated beyond the normal progression of the disorder. The Board concludes that the Veteran's pre-service angioedema did not increase in severity during active service and that there is clear and unmistakable evidence of no aggravation. Service treatment records for the short period of active duty in 1999 could not be recovered, but fellow soldiers credibly reported that the Veteran experienced episodes of lip swelling plus skin outbreaks during the outdoor training in the sun and heat. Service personnel records also document recurrent outbreaks of both lip swelling and rash on the sun-exposed areas of the arms, neck, and face during active duty for training and inactive duty training from 2001 to 2007, all arising from sunlight exposure. In several letters and treatment reports, the private dermatologist noted that the lip swelling and surface blisters were not recurrences of the Veteran's pre-service urticaria but rather a separate response to sunlight. The Board places great probative weight on the opinion of the VA physician in October 2011 who reviewed the entire history including the lay statements, Reserve personnel records, and the comments of the private physicians and dermatologist. This physician also concluded that the angioedema of the lips was separate from photodermatitis. The physician concluded that outbreaks on the lips not associated with sunlight continued to be intermittent but were not aggravated by events in service. This is consistent with all other lay and medical reports that post-service lip swelling was associated with sunlight and treated with an anti-inflammatory medication also used for the rash on other parts of the body. Therefore, the presumption of aggravation has been rebutted because the pre-service angioedema of the lips that was not associated with sunlight did not undergo an increase in severity and that there is clear and unmistakable credible medical evidence of no aggravation during the short period of active duty service. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for angioedema of the lips is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs