Citation Nr: 1326944 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 06-33 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for myasthenia gravis. 2. Entitlement to service connection for a skin rash. 3. Entitlement to service connection for vision problems, to include blurred vision. 4. Entitlement to service connection for hypertension. 5. Entitlement to service connection for thyrotoxicosis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran served on active duty from November 1990 to April 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In July 2010, the Veteran was scheduled for a central office hearing before the Board. However, he failed to appear. In August 2010 and October 2012, the Board remanded the case for further development. FINDINGS OF FACT 1. Myasthenia gravis did not have its onset during active service or result from disease or injury in service. 2. The Veteran's skin symptoms have been associated with the diagnosed myasthenia gravis. No other pathology has been identified as associated with the skin. 3. The Veteran's symptom of blurry vision has been associated with the diagnosed myasthenia gravis. No other pathology has been identified as associated with the eyes. 4. Hypertension has not been shown during the pendency of the appeal. 5. Thyrotoxicosis has not been shown during the pendency of the appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for myasthenia gravis have not been met. 38 U.S.C.A. §§ 1110, 1112, 1117 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2012). 2. The criteria for entitlement to service connection for a skin rash have not been met. 38 U.S.C.A. §§ 1110, 1112, 1117 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2012). 3. The criteria for entitlement to service connection for vision problems have not been met. 38 U.S.C.A. §§ 1110, 1112, 1117 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2012). 4. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1117 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.317 (2012). 5. The criteria for entitlement to service connection for thyrotoxicosis have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1117 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. April 2004 and March 2008 letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). These letters 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 was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in an April 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 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. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted and opinions were obtained in September 2004, December 2010, January 2011, March 2011, July 2011, February 2012, and December 2012; the Veteran has not argued, and the record does not reflect, that these examinations and opinions were inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). As the reports of the VA examinations are based on the Veteran's medical history and described the disabilities in sufficient detail so that the Board's decision is a fully informed one, the examinations are adequate. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009); Dingess/Hartman, 19 Vet. App. at 486. II. Service connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection for certain chronic disorders, such as cardiovascular-renal disease, including hypertension, may be established based on a legal "presumption" by showing that either disability manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007). The Veteran contends that service connection is warranted for her claimed disabilities as Gulf War illnesses. Post-service medical records show that the Veteran was diagnosed as having hypertension, hyperthyroidism, myasthenia gravis, and tinea versicolor. The Veteran's complaints of blurry vision and skin discoloration were found to be symptoms of her myasthenia gravis and service connection under 38 C.F.R. § 3.317 is therefore precluded for those claims as the associated symptoms or complaints have been attributed to known clinical diagnoses. VAOPGCPREC 8-98 (Aug. 3, 1998). 1. Myasthenia gravis The Veteran claims that myasthenia gravis is caused by exposure to chemicals and pollutants in the Persian Gulf or inoculations during service. Post-service medical records show that the Veteran was diagnosed as having myasthenia gravis. Therefore, the first requirement for service connection for this claim, the existence of a current disability, is met. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The medical evidence shows that the Veteran was not diagnosed with myasthenia gravis until 2003, about 12 years following service. The time lapse between service and any documented evidence of treatment can be considered, along with other factors, as evidence of whether an injury or disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). There is no competent medical evidence of record showing that the Veteran's myasthenia gravis had its onset during active service or is related to any in-service disease or injury. Private and VA medical treatment records regarding myasthenia gravis make no mention of any link between this condition and service. The Veteran was afforded VA examination in connection with her claim. Both the February 2012 and December 2012 VA examiners opined that myasthenia gravis is not related to the Veteran's military service, including exposure to environmental hazards and inoculations. The December 2012 examiner stated that the medical literature does not support a casual effect between her inservice vaccinations of anthrax, yellow fever, typhoid and influenza, or exposure to sand and insect repellants, and her diagnosed myasthenia gravis. There was some research indicating that the yellow fever vaccination should not be used with people who have myasthenia gravis, but an acute reaction would occur within a week of vaccination and could be fatal. The Veteran's condition did not manifest until 13 years after vaccination and, therefore, was not likely due to or caused by her vaccinations in service. The examiner also explained that pyridostigmine bromide is a treatment for myasthenia gravis and unlikely to cause the condition. Further, deet has been researched extensively; the bulk of the research did not support adverse side effects when used as directed and there was no correlation between deet and myasthenia gravis. The VA examiner provided a definitive opinion that the Veteran's current disability was not related to active service. As the examiner provided a detailed rationale and cited to specific evidence in the file as support for his opinion, the Board finds it to be probative and persuasive. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, determining whether the Veteran's myasthenia gravis is caused by or related to service, including chemical and pollutants in the Persian Gulf or inoculations during service, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). There is no competent medical evidence of record showing that the Veteran's myasthenia gravis had its onset during active service or is related to any in-service disease or injury. The preponderance of the evidence is against the claim for service connection; there is no doubt to be resolved; and service connection is not warranted. 2. Skin rash The Veteran claims that her skin rash is caused by exposure to chemicals and pollutants in the Persian Gulf or inoculations during service. The Veteran was found to have a skin rash in February 2003 along with other symptoms that were attributed to a diagnosis of myasthenia gravis. During a October 2004 dermatology consult, the Veteran was treated for multiple hyperpigmented papules on the left arm and right leg that started with her myasthenia gravis. The December 2012 VA examiner stated that the Veteran's skin condition of darkened skin on the arm and leg began around the time of her myasthenia gravis, which was years after service, and has not been diagnosed as a specific condition. The Veteran has been diagnosed as having tinea versicolor. Service treatment records are silent for this condition. The medical evidence shows that the Veteran was not diagnosed with a fungal rash until August 2010, about 19 years following service. The time lapse between service and any documented evidence of treatment can be considered, along with other factors, as evidence of whether an injury or disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). There is no competent medical evidence of record showing that the Veteran's tinea versicolor had its onset during active service or is related to any in-service disease or injury. The Veteran was treated in August 2010 for a fungal rash on the forearms that was noted as due to heat. There was no other medical evidence of treatment of record. The August 2010 VA medical treatment record makes no mention of any link between this condition and service. Furthermore, during the January 2011 VA examination, the Veteran was diagnosed as having inactive tinea versicolor and the examiner opined that the is was unlikely that the Veteran's tinea versicolor was related to service as it was not diagnosed during service nor was it noted at separation. During the December 2012 VA examination, physical examination was negative for tinea versicolor. The examiner stated that a specific skin condition was not diagnosed and since the rash appeared years after military service and there was no medical evidence of a similar rash in service, it was not as likely as not due to or caused by environmental hazards or inoculations or incurred in service. The VA examiner provided a definitive opinion that the Veteran's current disability was not related to active service. As the examiner provided rationale and cited to specific evidence in the file as support for his opinion, the Board finds it to be probative and persuasive. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet.App. at 435, determining whether the Veteran's hyperpigmented papules is a separately diagnosed disability and whether her tinea versicolor is related to service, including exposure to chemicals and pollutants in the Persian Gulf or inoculations during service, falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4. There is no competent medical evidence of record showing that either of the Veteran's skin conditions, hyper pigmented papules (undiagnosed) or her tinea versicolor (diagnosed), had onset during active service or are related to any in-service disease or injury. The preponderance of the evidence is against the claim for service connection; there is no doubt to be resolved; and service connection is not warranted. 3. Vision problems The Veteran claims that her vision problems are caused by exposure to chemical and pollutants in the Persian Gulf or inoculations during service or caused by her myasthenia gravis, which has been denied service connection in this decision. The Veteran was found to have blurred vision in February 2003, along with other symptoms that were attributed to a diagnosis of myasthenia gravis. During a September 2004 VA eye examination, the Veteran was diagnosed as having myasthenia gravis and no other findings of the eye on examination. During the December 2010 VA eye examination, the Veteran was diagnosed as having myasthenia gravis and refractive error. In a December 2012 VA eye examination, the Veteran was diagnosed as having myasthenia gravis in addition to refractive error. Refractive error of the eye is not considered a disease or injury for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9. Although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet.App. at 435, as to the specific issue in this case, determining whether the Veteran has a disability of the eye other than myasthenia gravis and refractive error, falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4. The medical evidence shows that the Veteran's vision problems were related only to myasthenia gravis and refractive error. There is no competent medical evidence of record showing that the Veteran currently has a disability manifested by vision problems that is not a symptom of myasthenia gravis or refractive error. See Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. The preponderance of the evidence is against the claim for service connection; there is no doubt to be resolved; and service connection is not warranted. 4. Hypertension The Veteran claims that her hypertension is caused by exposure to chemical and pollutants in the Persian Gulf or inoculations during service or caused by her myasthenia gravis, which has been denied service connection in this decision. The competent medical evidence of record does not demonstrate that the Veteran currently suffers from hypertension. While the evidence shows that the Veteran was hypertensive during her pregnancies in 1996, there is no evidence of a chronic disability as the medical evidence of record lacks support for a diagnosis of hypertension since 1996. See December 2012 VA examination. The September 2004 VA examination stated that the Veteran was diagnosed as having hypertension during her first pregnancy approximately 10 years earlier; however, her blood pressure returned to normal following the birth of her child. There is no evidence that the Veteran had the claimed disability at any time from when she first filed her claim for service connection in February 2004. McClain v. Nicholson, 21 Vet. App. 319 (2007). Service connection may not be granted for a diagnosis of a disability by history. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet.App. at 435, as to the specific issue in this case, determining whether the Veteran currently has hypertension falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4. In the absence of evidence of a current disability, the preponderance of evidence is against the claim for service connection; there is no doubt to be resolved; and service connection is not warranted. 5. Thyrotoxicosis The Veteran claims that her thyrotoxicosis is caused by exposure to chemical and pollutants in the Persian Gulf or inoculations during service. The competent medical evidence of record does not demonstrate that the Veteran currently suffers from thyrotoxicosis. While the evidence shows that the Veteran was diagnosed as having thyrotoxicosis in 1993, the September 2004 VA examiner stated that treatment for the Veteran's hyperthyroidism was discontinued approximately one year earlier and she was told her thyroid functions returned to normal. Subsequent VA examinations also report that the Veteran's thyroid functioning was normal and the Veteran was not currently diagnosed as having hyperthyroidism. See January 2011 and December 2012 VA examinations. A current disability is required in order to establish service connection. Brammer, 3 Vet. App. at 225. There is no evidence that the Veteran has had the claimed disability at any time from when she first filed her claim for service connection in February 2004. McClain v. Nicholson, 21 Vet. App. 319 (2007). Service connection may not be granted for a diagnosis of a disability by history. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet.App. at 435, as to the specific issue in this case, determining whether the Veteran currently has thyrotoxicosis falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4. In the absence of evidence of a current disability, the preponderance of evidence is against the claim for service connection; there is no doubt to be resolved; and service connection is not warranted. ORDER Service connection for myasthenia gravis is denied. Service connection for a skin rash is denied. Service connection for vision problems, to include blurred vision is denied. Service connection for hypertension is denied. Service connection for thyrotoxicosis is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs