Citation Nr: 1323265 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 11-25 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for an auto-immune disability, to include undifferentiated connective tissue disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H.J. Baucom, Associate Counsel INTRODUCTION The Veteran had active service from September 1955 to September 1957. This matter comes to the Board of Veterans' Appeals (Board) from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In April 2013, a Board hearing was held at the RO in Indianapolis, Indiana before the undersigned; the transcript is of record. The Veteran's virtual VA file has been reviewed. 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). FINDING OF FACT An auto-immune disability, to include undifferentiated connective tissue disease, did not incur in service nor is it related to any injury or disease in service. CONCLUSION OF LAW The criteria for service connection for an auto-immune disability, to include undifferentiated connective tissue disease, have not been met. 38 U.S.C.A. 1101, 1110, 1112, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran contends he has an auto immune disability related to service, however as he has not been diagnosed with any of the identified 'chronic diseases' listed under 38 C.F.R. § 3.309(a) (for example: "myasthenia gravis" - an autoimmune disease of neuromuscular function, systemic lupus or other organic diseases of the nervous system) therefore 38 C.F.R. § 3.303(b) does not apply. 38 C.F.R. §§ 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The nexus between service and the current disability can be satisfied by competent evidence of continuity of symptomatology and evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran contends that his current auto immune disability is related to his in service mononucleosis, that either the mononucleosis caused or contributed to his current auto immune disability or that the mononucleosis was indicative of the beginning of an auto immune disability. The Veteran testified that in service, at the end of July 1957, nearly 50 years ago, after being treated for influenza for a few days, he was hospitalized for almost a month with mononucleosis. Service treatment records show that the Veteran was admitted with influenza on July 21, 1957 and discharged back to duty July 25, 1957. On July 29, 1957 sick call treatment records noted that the Veteran was admitted with a diagnosis of infectious mononucleosis. At a September 5, 1957 exit examination the Veteran was found to be normal with no residuals noted. The Veteran was found to be qualified to return to full active duty (RFAD), providing evidence against the claim that he has had a chronic disability based on this illness for nearly 50 years. The Veteran testified that the first post-service symptoms of his current undifferentiated connective tissue disorder (UCTD) was his ears filling up with fluid in the early 1980s, 30 years after this illness in service, and that he started having connective tissue eye problems in 2006, nearly one-half century after this illness in service. The Veteran is competent to report what he experiences through his five senses, such as feeling fluid or pressure in his ears. See, Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds his testimony as to symptomatology to be credible. Private medical treatment records show treatment in November 2006 by a rheumatologist for UCTD which was noted to have manifested in the past by positive ANA, positive anti-PR3, malaise, shortness of breath, hives, malar rash, splinter hemorrhages, pericarditis and synovitis. Overall, the Veteran's primary symptomatic complaints have been back pain, joint pain and malaise. In 2000 the Veteran started receiving Social Security disability for disorders of the back and the supporting documents note a history of back pain beginning with a work injury 20 years prior. Post service treatment records contain no reference that any current auto immune disability, or symptoms of a disability, began in service or are related to mononucleosis in service, providing evidence against this claim as nothing suggests a problem associated with the illness in 1957. In sum, the Veteran had mononucleosis in service in 1957. A few weeks thereafter he separated from service with no residuals or abnormalities noted. In the early 1980s the Veteran began having fluid in his ears. In 2006, he started having eye problems and has been treated for UCTD since at least 2006. The Veteran currently has an auto immune disability, UCTD. Although the Veteran proposes that his current auto immune disability is related to his in service mononucleosis there is no evidence to support this theory. None of his doctors have suggested a connection between the two, nor has the Veteran submitted any medical literature suggesting such link. It is very unclear why the Veteran himself believes there is such a connection between an event so distant in the past and his current disability. While the Veteran is competent to report what he experiences, such as symptoms of pain and treatment provided by doctors, he is not competent to diagnose a medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). There is no competent evidence of record to even suggest that a current auto immune disability began in service or is otherwise related to service, to include the in service mononucleosis. The fact that the Veteran was treated and then went decades without problems only provides evidence against this claim. The fact that in his claim with SSA he did not even suggest he had this problem provides evidence against this claim. The fact that in treatment for this problem his military service from nearly fifty years ago is not even cited does not help his claim. Such facts, overall, provide evidence against his claim, making it less likely that not (less than a 50% chance) that his current problem has any connection with treatment in July 1957. The weight of the evidence is against the claim; there is no doubt to be resolved and service connection is denied. 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). A December 2009 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's available service treatment records, VA medical treatment records, and private treatment records have been obtained. In July 2012 a formal finding of unavailability was made reporting that records from the naval hospital at Argentia, Newfoundland, from 1957 had been destroyed. In this regard, it is important for the Veteran to understand that the Board has assumed that the Veteran was, in fact, treated in 1957. Therefore, the question is not one of another records search for records from Newfoundland from nearly one-half century ago (in this regard, it is important for the Veteran to understand that no private health care provider keeps international records for such a long period of time). The critical question is whether this (at best) one month treatment for infectious mononucleosis was the cause of his current alleged disability. In this case, the Board finds, based on the evidence, that it is less likely than not the result. The Veteran's own statements are, at best, unclear as to why he feels there is some connection between being sick for 30 days in 1957 and his current problem decades later. In his 1999 disability evaluation for SSA, he made no reference to this problem at all, more than 40 years after the fact, clearly indicating a rather large gap between the 1957 treatment and his current disability. The Veteran submitted recent private treatment records at the April 2013 Board hearing, with waiver of RO consideration. He has not identified any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration disability determination, and the records considered in that determination were obtained in February 2012. 38 C.F.R. § 3.159 (c)(2). The Veteran was not afforded a VA examination for his auto immune disability, but none is required. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A (d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Recently, the Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. However, a conclusory generalized lay statement, as in this case, suggesting a nexus between a current disability and service would not suffice to meet the standards as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, the only evidence that the Veteran's auto immune disability is related to his military service is his own generalized lay statements, which are unsupported by any evidence, medical or otherwise. Accordingly, the Board finds that referral for a VA medical examination is not warranted. Significantly, neither the Veteran nor his or representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. No further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 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). ORDER Service connection for an auto-immune disability, to include undifferentiated connective tissue disease, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs