Citation Nr: 1328760 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 10-24 909 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for common variable immune deficiency (CVID). ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from July 1999 to July 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran's claim was remanded in January 2013 for further development. The requested action was taken and the case has since been returned to the Board for adjudication. FINDING OF FACT There is at least an approximate balance of positive and negative evidence as to whether the Veteran's current CVID had its onset during his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for CVID have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Congenital and developmental defects are not disabilities within the meaning of applicable regulations providing for payment of VA disability compensation benefits. 38 C.F.R. §§ 3.303, 4.9 (2012). However, VA's General Counsel has held there is a distinction under the law between a congenital or developmental "disease" and a congenital "defect" for service connection purposes in that congenital diseases may be recognized as service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. A congenital or developmental defect, on the other hand, because of 38 C.F.R. § 3.303(c), is not service connectable in its own right, though service connection may be granted for additional disability due to disease or injury superimposed upon such defect during service. VAOPGCPREC 82-90. 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 to the claimant. Factual Background and Analysis The Veteran contends that his CVID had its onset during service or was chronically worsened by service. He states that the lung condition, as well as episodes of chronic allergic rhinitis experienced during service, were misdiagnosed and instead represented CVID. Of note, the Veteran was awarded service connection for bronchectasis in an April 2013 rating decision. A 10 percent rating was assigned, effective February 2008. However, the issue of entitlement to service connection for CVID remains on appeal. Upon enlistment, the Veteran was not shown to have any pre-existing disability of the immune system or lung/respiratory disability. He was noted, however, to have a history of sinus problems. During service, he was treated multiple times for symptoms due to upper reparatory infections, pneumonia, sinusitis, pharyngitis, allergic rhinitis, and chronic rhinorrhea. The evidence reflects that the Veteran was first diagnosed as having CVID in October 2007-approximately four years following service. The Veteran was afforded VA examinations in July 2008, during which the examiner found no pneumonia residuals, and no evidence of chronic sinusitis that was permanently aggravated by his military service. No opinion was provided with respect to CVID. In November 2011, the Veteran was provided a VA examination for CVID, during which the examiner indicated that there is no evidence that he has this condition. She further provided a negative opinion because his disability is due to a genetic defect. Pursuant to the most recent remand in January 2013, the Veteran was afforded a VA examination in March 2013 to determine the etiology of his CVID. The examiner indicated that the Veteran's CVID is a "genetically determined condition" that "was not caused by contact or exposure during military service." The examiner indicated that the Veteran's recurrent infections (both during and after service) were due to immunodeficiency. In other words, the Veteran's immune system was impaired and he had a high frequency of recurrent sinusitis and recurrent pneumonia during his military service. The examiner further indicated that there are no blood test results from his military service showing CVID, but "this is not detected with normal blood test screening [and it] requires a specific measurement of immune globulin and IgG subsets." The examiner stated that the CVID test was not performed until four years following service. She opined that it is "more likely than not that he had aggravation of his lung condition of recurrent pneumonia, causing bronchectasis, because the diagnosis of CVID was not made during service." She stated that it likely that his bronchectasis was began in or was worsened during military service. The examiner further opined that had the Veteran's CVID during service been recognized during service, it is more likely than not that recurrent chest infections with resultant bronchectasis would have been avoided. The examiner generally opined that the "claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness." Upon careful review of the evidence of record, the Board finds that the positive and negative evidence as to the etiology of the Veteran's CVID is in relative equipoise and all reasonable doubt is found in the Veteran's favor. Although CVID was not diagnosed until 2007, the competent evidence of record almost uniformly shows that it was related to the infections the Veteran had during active service. As such, the criteria for service connection for CVID on a direct basis have been met. See 3.303. In cases of hereditary disease, the presumption of soundness must be discussed. Quirin v. Shinseki, 22 Vet. App. 390, 394-97 (2009). Because the Veteran was not noted to have immunodeficiency or other infections or relevant health problems at entry into active service, the presumption of soundness applies. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b)(1). In order to rebut the presumption of soundness, there must be clear and unmistakable evidence both that the Veteran's CVID pre-existed active service and that it was not aggravated by active service. See id; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). There were some pre-service references to pneumonia and respiratory symptoms. However, references to childhood pneumonia do not amount to clear and unmistakable evidence to rebut the presumption that the Veteran's was sound at entry into active service. Moreover, although the Veteran entered active service in July 1999, his relapsing chest problems were most severe beginning in November 2002, and these symptoms have been directly linked to his CVID. The Board is aware that there are some competing opinions with respect to the etiology of the Veteran's CVID, as well as an indeterminate date of onset. In light of the competing medical opinions, lay evidence, and medical evidence, however, the Board finds that the competent medical evidence regarding whether there is a medical nexus between the current CVID and active duty is, at the very least, in relative equipoise. Thus, the Board resolves all doubt in the Veteran's favor and finds that the evidence of record as a whole favors a finding that his CVID at least as likely as not had its onset during service. The benefit sought on appeal is allowed. ORDER Service connection for CVID is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs