Citation Nr: 1322278 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 06-15 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for Raynaud's phenomenon (also referred to as disease. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from August 2002 to October 2003. This case was previously before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The case claim on appeal was remanded by the Board in November 2008, September 2010, November 2011, and August 2012 and is now ready for appellate review. In June 2008 and August 2011, hearings were held before the Veterans Law Judge signing this document, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002). Transcripts from these hearings are of record. The issue of entitlement to special monthly compensation based on the need for aid & attendance/housebound status (SMC) has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board observes that in September 2009, the RO denied the Veteran's original SMC claim and she did not initiate an appeal. The Veteran subsequently testified at her August 2011 Board hearing that she intended to file a new SMC claim. The Board also observes that it previously referred this claim to the AOJ in its November 2011 and August 2012 remands. To date, the RO has not taken action on this claim. Therefore, the Board does not have jurisdiction over this claim and it is referred to the AOJ for appropriate action. 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). FINDINGS OF FACT 1. Raynaud's phenomenon/disease was noted upon the Veteran's service enlistment examination; the presumption of soundness does not apply. 2. The preponderance of the evidence is against a conclusion that the severity of the underlying pathology associated with Raynaud's phenomenon/disease that pre-existed service was permanently worsened by service. The Veteran does not have Raynaud's Syndrome. CONCLUSION OF LAW The criteria for service connection for Raynaud's phenomenon or disease are not met. 38 U.S.C.A. §§ 1110, 1111, 1153, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g. Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 - 3,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between a Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In an April 2006 letter issued prior to the September 2006 rating decision which gave rise to this appeal, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection for Raynaud's phenomenon, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. This letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates in the event service connection was granted, as well as the type of evidence that impacts those determinations. As such, the letter meets the content of notice requirements described in Dingess/Hartman and Pelegrini and also meets the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of service treatment records, SSA, VA and private treatment records, and reports from April 2012, October 2012, and January 2013 VA examination/medical opinions. The record also contains an April 2013 expert opinion from a physician. Also of record and considered in connection with the appeal are the transcripts from the Veteran's June 2008 and August 2011 hearings before the undersigned, along with various written statements provided by the Veteran. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) (2012) requires that any Veterans Law Judge who chairs a hearing fulfill two duties to comply with the VCAA. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant, 23 Vet. App. at 488 . Here, during the June 2008 and August 2011 hearings, the undersigned Veterans Law Judge adequately explained the claim on appeal and suggested evidence that may support this claim, to include a supporting opinion from a physician and evidence that the Veteran might submit that may have been overlooked. The Board accordingly concludes that the notice requirements under Bryant were effectively satisfied. To the extent any such notice may have been inadequate, this was effectively cured both by actual knowledge as evidence by statements and questions of the Veteran's authorized representative at the hearing, as well as by the Board providing such explanation of the issue and suggesting submission of evidence in the subsequent remands the Board issued to develop this claim. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v West, 11 Vet. App. 268, 271 (1998). In this regard, October 2012 and January 2013 statements from a VA medical examiner, as requested in the most recent remand, included opinions as to whether the Veteran's Raynaud's phenomenon was incurred in service. While the Board has considered the argument presented by the Veteran in her August 2012 statement expressing her desire for another examination due to problems she had with the manner in which she was examined by the VA physician's assistant assigned to her case, the April 2013 expert opinion by a physician is clear and definitive and, in light of the other medical evidence of record, sufficient for adjudication purposes. As such, further VA examination is not necessary. In addition, the record also reflects, as requested in the most recent remand, multiple attempts to obtain records of VA treatment at various facilities in Arizona for the period between January 1, 2007, and December 31, 2007. Such efforts did not yield positive results, and a negative reply as to existence of any records pertinent to treatment of the Veteran was received from the Southern Arizona VA Health Care System in November 2012. Accordingly, the Board finds that the RO has substantially complied with the Board's remand directives. See Dyment v. West¸ 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West where Board's remand instructions were substantially complied with); see also D'Aries v. Peake, 22 Vet. App. 97, 105-106 (2008) (finding that substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided. See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and the Virtual VA file (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. (The Virtual VA file reflects clinical records dated through March 2013 documented to have been considered by the RO in the April 2013 Supplemental Statement of the Case.) 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) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to "chronic" diseases listed under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (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. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009. A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). A Veteran who served during a period of war, or after December 31, 1946, 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 to service and was not aggravated by such service. 38 U.S.C.A. § 1111. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Temporary or intermittent flareups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993). At the outset, as "Raynaud's" was noted on the May 2002 service enlistment examination, and it is in fact contended by the Veteran, to include in sworn testimony, that Raynaud's phenomenon pre-existed service, the presumption of soundness does not attach to this case. Once a disability is found to have preexisted service, then service connection may be predicated only upon a finding of aggravation during service. Paulson v. Brown, 7 Vet. App. 466, 468 (1995). [As the presumption of soundness does not apply, the burden is not on the Board to show by clear and unmistakable evidence the Veteran's Raynaud's phenomenon was not aggravated by service as set forth at VOPGCPREC 3-2003 (2003), 69 Fed. Reg. 25,178 (2004) and Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).] In point of fact its is the Veteran's contention that service connection for Raynaud's phenomenon is warranted not on the basis of incurrence in service but aggravation therein. In particular, she contends that the failure to provide her with medication during service resulted in aggravation of her Raynaud's phenomenon. See eg. November 2006 notice of disagreement and June 2008 Hearing Transcript, Page 4.) She also has asserted that having to perform repetitive tasks with her fingers, such as constantly opening and closing medicine bottles, coincident with her duties as a nurse during service aggravated the condition. (See eg. August 2011 Hearing Transcript, Page 5). The record clearly reflects treatment for Raynaud's phenomenon prior to service. See eg. Rochester General Hospital clinical reports dated from 1999 to 2003. While a June 2002 statement from J.M., M.D., reported that the Veteran was diagnosed with Raynaud's syndrome two years previously and had taken no medication since that time, the private treatment reports dated from 1999 to 2003 clearly reflect that she was taking medication for the condition. In this regard, a December 2, 1999, private clinical report noted that the Veteran stopped taking her medication for the condition because it aggravated her allergies, and that her Raynaud's worsened as a result. This report indicated that she was started on a different medication, cardizem, for her Raynaud's phenomenon on a trial basis. Also noteworthy given the assertions of the Veteran that her medication was discontinued during service, a May 2003 clinical report [which was during her period of active service] noted that the Veteran was prescribed cardizem for her Raynaud's phenomenon. The service treatment reports reflect treatment for conditions unrelated to Raynaud's phenomenon, to include visual, gait, and emotional disturbances and low back pain. The post-service evidence includes a January 2005 private treatment report reflecting that the Veteran still had "issues" with her Raynaud's phenomenon. A December 2007 VA clinical report noted that the Veteran experienced increased numbness in her hands during cold weather secondary to her Raynaud's disease. At that time, she described having problems in making a full fist and performing opposition of the bilateral hands. A March 2008 private clinical report reflects a history of color changes in the hands and feet during cold weather associated with her Raynaud's phenomenon. The Veteran reported problems making a fist at that time bilaterally. The post-service evidence also include VA active problem lists to the present time that include Raynaud's as one of the Veteran's conditions. Current medication lists indicate that she is prescribed medication, the calcium channel blocker nifedipine, for the condition. In assessing her Raynaud's phenomenon during an April 6, 2011, VA outpatient treatment visit, the examiner noted that the Veteran should continue taking her calcium channel blocker. From the above, the Board concedes, as asserted by the Veteran, continuity of symptoms of Raynaud's phenomenon from service to the present time. The issue for consideration, however, is whether the underlying disability associated with this condition was permanently worsened by service. The Veteran has presented no objective evidence in support of such a conclusion, and while the Board recognizes that the Veteran is a nurse, she has not been shown to have any specific knowledge of the underlying pathology of Raynaud's syndrome. Black v. Brown, 10 Vet. App. 279, 284 (1997) (rejecting the medical opinion of the appellant's wife, a nurse, because she did not show that she had specialized knowledge of cardiology or show that she participated in her husband's treatment). Weighed against the assertions of the Veteran in this regard are the opinions by a VA examiner, based on physical examination of the Veteran and review of the history contained in the claims file, rendered in April 2012, October 2012, and January 2013 that the Veteran's Raynaud's phenomenon was clearly and unmistakably not aggravated beyond its natural progression by service. There is no indication that the Veteran's training as a nurse would include sufficient knowledge of conditions such as Raynaud's phenomenon that her opinion should be accorded equal or greater weight than the above opinions. Black, supra. Of even greater probative value is the April 2013 expert opinion by a physician, documented to been based on a review of the pertinent clinical history. The physician noted that this record "repeatedly interchanged and confused the terms Raynaud's syndrome with Raynaud's phenomenon." She explained that Raynaud's "syndrome" was a vasospastic disorder of the small vessels that occurred secondary to an underlying secondary systemic or connective disease process while Raynaud's "phenomenon" was commonly associated with small vessel vasospasms caused by cold exposure rather than an underlying disease. The physician found that that it was at least as likely as not that the Veteran had Raynaud's phenomenon rather than Raynaud's syndrome because there was no underlying systemic disease. In her April 2013 opinion, the physician concluded that it was less likely than not that the Veteran's Raynaud's phenomenon, which she said was "disclosed" at the time of enlistment, was aggravated "beyond its normal aging process." She noted that the Veteran was not exposed during her short period of active duty to cold and wet/damp conditions. The examiner also stated that the fine motor skills coincident with the Veteran's duty as a nurse during service "were not known stressors for vasospasms." With respect to the "baseline" measurements of the Raynaud's phenomenon, the physician concluded that the condition that pre-existed service and exists currently were both "0" because there was no underlying disease to associate the vasospasms with the clinical diagnosis prior to service and repeated motion and use of fine motor skills (as performed during service) were not stressors of vasospasms. The Board recognizes that the above opinion did not specifically address the Veteran's contentions that not being afforded medication for her Raynaud's phenomenon during service aggravated her condition. However, even assuming that she was not properly provided medication during service (which is in question given the March 2003 medication list that included medication for Raynaud's phenomenon), given the clinical evidence of extensive pre-service treatment, no pertinent in-service treatment, and the lack of any objective post-service evidence of worsening pathology, the Board simply finds no reliable evidence of an increase in the severity of the underlying pathology associated with the condition at issue as a result of service. Thus, even assuming that the Veteran was not properly provided medication during service, it cannot be said to have resulted in "aggravation" of Raynaud's phenomenon as that term is defined for the purposes of service connection. Jensen, supra. In short, while the Board finds that Veteran to be credible and sincere in her belief that her Raynaud's phenomenon was aggravated by service, comparing the pre and post service disability associated with Raynaud's phenomenon, given the evidence of extensive treatment, to include with medication, for Raynaud's phenomenon prior to service and the current level of disability wherein the condition also requires medication, it appears that the current condition associated with the condition at issue is no worse than it was prior to service. As such, and given the lack of any evidence of treatment for the condition during service and the negative opinions by the VA examiners set forth above, the Board concludes that the preponderance of the evidence is against a conclusion that the underlying disability associated with Raynaud's phenomenon was permanently increased by service. Thus, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Entitlement to service connection for Raynaud's phenomenon is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs