Citation Nr: 1325117 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 09-18 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for drug sensitivity as secondary to fibromyalgia or an acquired psychiatric disorder. WITNESSES AT HEARING ON APPEAL The Veteran and her spouse ATTORNEY FOR THE BOARD DeFrank, James INTRODUCTION The Veteran served on active duty from January 1987 to September 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Winston-Salem, North Carolina. In August 2010, a Travel Board hearing was held before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. In December 2010 and March 2012, the Board remanded the Veteran's claim for further development. In February 2013, the Board again remanded the issue above for additional development. Such development has been completed and associated with the claims file, and this matter is returned to the Board for further review. FINDING OF FACT A drug sensitivity/allergy disability was not present during active service and is not related to service or to a service-connected disability. CONCLUSION OF LAW A drug sensitivity/allergy disability was not incurred in or aggravated by active military service and is not proximately due to or the result of any service-connected disability. See 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). In this appeal, the RO provided notice to the Veteran in an October 2007 letter, prior to the date of the issuance of the appealed May 2008 rating decision. The October 2007 letter explained what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claims adjudicated in this decision. The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the claimed disorder described by the Veteran. The Veteran was not provided with a VA examination and opinion to assess the current nature and etiology of her claimed drug sensitivity disability. However, VA need not conduct an examination with respect to the claim on appeal, as information and evidence of record contains sufficient competent medical evidence to decide the claim. See 38 C.F.R. § 3.159(c)(4). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the 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 to make a decision on the claim. Simply stated, the standards of McLendon are not met in this case as there is no credible evidence that her drug sensitivity disability manifested in service or was otherwise related to service and there is no credible evidence that her drug sensitivity is related to service to include as due to a service-connected disability. Thus remand for a VA examination is not necessary. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (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 1372, 1377 (Fed.Cir.2007) In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Secondary service connection shall be awarded when a disability "is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a). Also, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Effective October 10, 2006, 38 C.F.R. § 3.310 was amended to implement the holding in Allen v. Brown, 7 Vet. App. 439 (1995) for secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service- connected disability. See 71 Fed. Reg. 52744 (2006). The amendment essentially codifies Allen with language that requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background and Analysis The Veteran claims that she has a drug sensitivity disability that is related her active service, to include as secondary to the fibromyalgia she claims to have incurred in service, and as secondary to an acquired psychiatric disorder. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds however, that service connection for a drug sensitivity disability is not warranted. Initially, the Board notes that there is some question as to whether the Veteran has a disability for compensation purposes. The Veteran had not been formally diagnosed with a drug sensitivity disability but a September 2001 private treatment note reported that the Veteran was allergic to Codeine and antidepressant medications. Additionally, during a September 2006 VA mental health consultation, the Veteran reported that she had reactions to Zoloft, Imipramine, Prozac, Anafranil ,Paxil and Tegretol. When affording the Veteran the benefit of the doubt the Board finds that the Veteran has a current drug sensitivity/allergy disability. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between her military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). Regarding the Veteran's contentions that her drug sensitivity disability is secondary to her fibromyalgia, the Board notes that in a March 2012 decision, the Board denied service connection for fibromyalgia. Hence, as a matter of law, the claim for service connection for drug sensitivity disability as secondary to fibromyalgia is without legal merit, and must be denied as a matter of law. See 38 C.F.R. § 3.310(a); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). However, in a May 2013 rating decision, the Board granted service connection for major depressive disorder at a 50 percent evaluation, effective August 10, 2007. Accordingly, service connection is available if it can be shown that the Veteran's drug sensitivity disability is proximately due to, the result of, or permanently aggravated by her service-connected major depressive disorder. See, Allen; supra. The Board concludes however, that service connection is not warranted. While the record reflects a diagnosis referable to a drug sensitivity/allergy disability, it does not contain competent evidence which relates this diagnosis to any injury or disease in service, or to the Veteran's service-connected acquired psychiatric disorder. Notably, the Veteran's service treatment records were negative for complaints or treatments related to a drug sensitivity disability and there is no competent evidence which relates the Veteran's drug sensitivity disability to her service. Similarly, the Veteran has not produced any competent evidence relating her claimed disability to her service-connected acquired psychiatric disability. The Board finds that the most credible evidence of record, while showing a currently diagnosed drug sensitivity/allergy disability, does not demonstrate that this disability is related to the Veteran's service or to a service-connected disability. In reaching this conclusion, the Board has considered the lay evidence offered by the Veteran to VA. This includes his statements and testimony in which she asserted her belief that her claimed drug sensitivity disability is related to her service-connected acquired psychiatric disorder. To the extent that the Veteran herself contends that a medical relationship exists between her current claimed disability and service, the Board again acknowledges that the Veteran is competent to testify as to her observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board recognizes that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that the question regarding the potential relationship between the Veteran's claimed drug sensitivity disability and his service-connected acquired psychiatric disorder to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In this instance, therefore, the Veteran as a lay person has not been shown to be capable of making medical conclusions, especially as to complex medical diagnoses such as a link between her current drug sensitivity/allergy disability and her service, to include her service-connected acquired psychiatric disorder. In sum, the Board finds that service connection for a drug sensitivity disability must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for drug sensitivity as secondary to fibromyalgia or an acquired psychiatric disorder is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs