Citation Nr: 1329631 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 08-32 597 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for sarcoidosis, to include as due to in-service herbicide exposure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran had active service from September 1967 to May 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In that decision, the RO denied service connection for sarcoidosis. In July 2010, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge (VLJ) sitting in Washington, DC. A transcript of his testimony is associated with the claims file. The appeal was remanded to the RO via the Appeals Management Center (AMC), in Washington, DC, in August 2010 and December 2012 for additional development of the record. Upon completion of the requested development, the case was returned to the Board. In November 2011, April 2012, and August 2012, the Board requested expert medical opinions to answer pertinent medical questions in this case. Responses to those requests were received in March 2012, April 2012, and August 2012, respectively. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. In a statement dated in October 2010, the Veteran requested that his claim for service connection for posttraumatic stress disorder be reopened. As this matter has not yet been adjudicated, it is referred to the RO for the appropriate action. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam; accordingly, exposure to herbicides is presumed. 2. Sarcoidosis is not related to military service and is not a presumptive disorder for exposure to herbicides. CONCLUSION OF LAW Sarcoidosis was not incurred in active service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks entitlement to service connection for sarcoidosis, to include as due to herbicide exposure. In the interest of clarity, the Board will discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. Stegall concerns As noted above, in August 2010 and December 2012, the Board remanded this claim and ordered the agency of original jurisdiction (AOJ) to schedule the Veteran for a VA examination and associate a report of the examination with his claims folder. The Veteran's claim was then to be readjudicated. Pursuant to the Board's remand instructions, the Veteran was provided with a VA examination for his sarcoidosis in September 2010, and a report of the examination was associated with his claims folder. The Veteran's claim was readjudicated via February 2011 and March 2013 supplemental statements of the case (SSOC). While complete PFT results were not obtained following the December 2012 remand, such is not prejudicial as the Board finds herein that the Veteran arguably has a current disability. Accordingly, the Board's remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also defines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Notice The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice, to include notice of the disability rating and effective date elements of the claim, by a letter mailed in December 2007, prior to the initial adjudication of his claim. In short, the record indicates the Veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim. The pertinent evidence of record includes the Veteran's statements, service treatment records, as well as VA and private treatment records. As noted above, the Veteran also was afforded a hearing before the undersigned VLJ during which he presented oral argument in support of his service connection claim. 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 the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. 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. Here, the VLJ noted the issue on appeal during the hearing and the Veteran provided testimony concerning a nexus between current disability and his military service. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. Thereafter, the case was remanded for an examination and to obtain additional medical evidence. Additionally, a VHA opinion was obtained in August 2012. The VHA report reflects that the examiner reviewed the Veteran's past medical history and provided an opinion that was supported by a rationale. The Board therefore concludes that the VHA opinion is adequate. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. The Board notes that the Veteran has submitted statements in support of his claim from Dr. Ford, who has treated him for many years. Pursuant to the August 2012 Board remand, the AOJ was directed to obtain records from Dr. Ford, as well as Dr. Phillips and Dr. Carmack. In a January 2013 letter, the Appeals Management Center (AMC) requested that the Veteran return a signed and dated VA Form 21-242 Authorization and Consent to Release Information in order to obtain these treatment records. As evidenced by the claims folder, the Veteran did not return a signed and dated medical authorization form. Although the absence of the private treatment records from Dr. Ford, Dr. Phillips, and Dr. Carmack is regrettable, the Board finds that VA adjudication of the appeal may go forward without these treatment records because the Veteran had an obligation to assist VA in the development of his sarcoidosis claim by providing signed and dated medical authorization forms. See Wood v. Derwinski, 1 Vet. App. 190. 192 (1991) ("the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."); See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) [VA's duty to assist is not a license for a "fishing expedition" to determine if there might be some unspecified information which could possibly support a claim]. The Board's decision to not remand the appeal for a third time to obtain these records is supported by the fact that the AMC made a sufficient attempt to obtain the private treatment records. The Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He has retained the services of a representative. He was afforded a hearing before the undersigned in July 2010. Accordingly, the Board will proceed to a decision. Service connection for sarcoidosis Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). To establish a right to compensation for a present disability, a Veteran must show: "(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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after 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) . A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). If so, the veteran is thereby entitled to a presumption of service connection for certain disorders listed under 38 C.F.R. § 3.309(e). These diseases are chloracne; type II diabetes; Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; non- Hodgkin's lymphoma; acute and subacute peripheral neuropathy (defined as transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset); porphyria cutanea tarda; prostate cancer; respiratory cancers; AL amyloidosis, and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2012). In this case, the Board acknowledges that VA regulations do not provide for presumptive service connection for sarcoidosis. Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). The Court has specifically held that the provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In this case, the medical evidence of record arguably indicates diagnoses of sarcoidosis. See, e.g., a September 2010 VA examination report. Concerning in-service disease, the Veteran's service treatment records, to include his May 1969 separation examination, are absent any complaints of or treatment for sarcoidosis. On the contrary, the first competent postservice evidence of symptoms associated with sarcoidosis is dated in 1976. This was more than 5 years after the Veteran's discharge from active duty. The lack of time between service discharge and onset of disability does not preclude establishing service connection for this disability if the competent evidence shows that the disability is related to an in-service event such as the Veteran's claimed in-service herbicide exposure. In this regard, service personnel records confirm the Veteran's service in the Republic of Vietnam. Furthermore, the Board presumes that the Veteran was exposed to herbicides during his service in Vietnam. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012). As discussed above, according to 38 C.F.R. § 3.309(e) (2012), certain diseases may be presumed to be related to exposure to herbicides; the Veteran's claimed disability, however, sarcoidosis is not included in the above-indicated diseases associated with exposure to an herbicide agent. See 38 C.F.R. § 3.309(e) (2012). The competent and probative evidence of record shows that the Veteran has been diagnosed with sarcoidosis; this is not a presumptive condition under 38 U.S.C.A. § 1116(b). Therefore, the Veteran's sarcoidosis may not be presumed to be related to herbicide exposure. However, service connection based on direct causation may still be established pursuant to Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Turning to the crucial question of a causal relationship, the Board finds that the preponderance of the evidence is against finding that sarcoidosis is related to his military service, to include herbicide exposure. In September 2010, a VA examiner indicated that the etiology of sarcoidosis is unknown but the different rates of incidents and prevalence among different geographic regions of the world are consistent with the view that environmental exposures or important determinants put one at risk for developing sarcoidosis. Epidemiologic studies from the 1950s to the 1970s associated sarcoidosis with specific environments such as exposure to pine pollen, pica, or the lumber industry. More recent studies suggest that fire places, wood stoves and home mold exposure are associated with increased risk. Certain occupations such as military personnel, fire rescue workers and health care workers have also been associated with a higher risk of developing sarcoidosis. According to the examiner, there is substantial evidence to support a genetic basis with a susceptibility to developing sarcoidosis. Moreover, she stated that while environmental factors including exposure to humid environments and pesticides have been postulated, there is no clear link between exposure to agent orange and the development of sarcoidosis. The examiner cited to medical literature in her opinion. In August 2012, due to the complexities of the medical issues involved, the Board, pursuant to 38 C.F.R. § 20.901 (2012), requested a VHA opinion from a pulmonologist to address whether the Veteran's sarcoidosis is related to his military service, to include herbicide exposure. In her August 2012 report, the VHA reviewer, Dr. E.G., concluded that "[i]t is less likely as not that the [V]eteran's sarcoidosis is related to his active service, to include as due to in-service herbicide exposure." Dr. E.G.'s rationale for her conclusion was based on her review of the Veteran's medical history and her review of medical literature. Specifically, she reported that there is no published data linking Agent Orange to sarcoid. Furthermore, she noted the Veteran's report that he had worked in the coal mining industry from 1970 to 1994. However, she reported that coal dust has not been proven to be an etiologic agent for sarcoidosis. She further noted that inorganic materials such as silica can initiate granulomatous reactions that may be clinically mistaken for sarcoidosis. Indeed, she opined that sarcoidosis is a multisystem disease of unknown etiology, and the precise antigenic stimuli that may be causative are unknown. However, she reported that the Veteran's pulmonary function testing reports dated 1995 and 2003 were normal. Furthermore, she reported that a 1993 chest X-ray revealed occasional small round opacities in the upper lung zones suggestive of pneumoconiosis, and that the chest X-ray findings may represent simple coal worker's pneumoconiosis or simple silicosis. She also found that there was no evidence that the Veteran had current symptoms related to his prior diagnosis of sarcoidosis. The August 2012 VHA report is based upon a review of the history, medical literature and is supported by a rationale. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. Additionally, the August 2012 VHA reviewer's opinion is consistent with the Veteran's medical history, which is absent any symptomatology of sarcoidosis for many years after service. The Board adds that another VHA reviewer similarly concluded in an April 2012 report that after review of the Veteran's medical history and medical literature that it is less likely as not that his sarcoidosis is caused by in-service herbicide exposure. In support of his claim, the Veteran submitted a memorandum from his private doctor, Dr. M.F. Dr. M.F. noted that the Veteran worked as a coal miner, but given the recent increase in literature suggesting that sarcoidosis is connected with exposure to environmental chemical dust, Dr. M.F. opined that the Veteran's exposure to herbicides "would be a most likely source of environmental chemical dust and exfoliant cause related to his sarcoidosis. Certainly, there are no other known causes of this disease to which [the Veteran] has been exposed, therefore it would seem that a direct correlation between his Agent Orange exposure in Vietnam and the disease sarcoidosis exists." In an October 2012 statement, Dr. M.F. clarified that he "did not say that the sarcoid is caused by agent orange exposure and [was] aware of the variety of data available concerning this discussion." He further stated that "there is no doubt agent orange exposure is associated with a variety of autoimmune and similar connective tissue diseases" and while "there may not be a direct proof that his sarcoid was caused by agent orange exposure...I don't think you can deny that there is at least a remote possibility that his agent orange exposure contributed to his multiple illnesses." The Board has the authority to "discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). The Board notes that both the United States Court of Appeals for the Federal Circuit and the Court have specifically rejected the "treating physician rule." See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001). Rather, in evaluating the probative value of competent medical opinion evidence, the Court has stated in pertinent part: "The probative value of medical evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches...As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator..." See Guerrieri v. Brown, 4 Vet. App. 467, 470- 71 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board finds that the opinion of Dr. M.F. is outweighed by the VHA opinion. Although Dr. M.F. noted that the Veteran worked as a coal miner, another source of environmental chemical dust, he did not consider that in his opinion. In other words, Dr. M.F. did not opine as to why the herbicide exposure was at least as likely as not the result of the herbicide exposure despite the coal mining. Moreover, his opinion linking the sarcoidosis to herbicides is based on the principle that sarcoidosis can be caused by exposure to environmental chemical dust. Here, the Veteran has at least two sources of environmental chemical dust, and Dr. M.F.'s findings only addressed one source. On the contrary, as discussed above, the August 2012 VHA reviewer specifically considered the Veteran's postservice employment as a coal miner, and concluded that both the Veteran's employment as a coal miner and his exposure to herbicides did not result in his sarcoidosis. In doing so, she related that there is no published data linking Agent Orange to sarcoid. The Board adds that the Veteran submitted a January 2007 Under Secretary for Health Information Letter on Sarcoidosis report as well as an October 2007 Internet article which detailed the signs and symptoms of sarcoidosis. The Board notes that medical treatise evidence can, in some circumstances, constitute competent medical evidence. See Wallin v. West, 11 Vet. App. 509, 514 (1998); see also 38 C.F.R. § 3.159(a)(1) [competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses]. However, the report and article submitted by the Veteran are of a general nature and do not contain any information or analysis specific to the Veteran's case. Additionally, the Court has held that evidence which is speculative, general, or inconclusive in nature cannot support a claim. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). The Board also recognizes that the Veteran has submitted copies of Board decisions which pertain to other veterans in support of this claim. In this regard, the Veteran, in essence, cites to the Board's disposition of those cases as precedential in establishing his claim. The Board emphasizes, however, that Board decisions are not precedential. See 38 C.F.R. § 20.1303 (2012). Rather, the Board must weigh the facts of each case and apply the governing laws and regulations without regard to dispositions in other veterans' cases based on separate and unique facts. To the extent that the Veteran asserts that his sarcoidosis is related to his military service, the Board observes that lay people are competent to testify to visible or otherwise observable symptoms of disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Furthermore, 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) (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). However, in this case, the Veteran's statements that he has sarcoidosis that is due to service, to include presumed herbicide exposure therein, relates to an etiological question as to an internal, not directly observable disease, unlike testimony as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. Compare Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis) with Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). The lay statements of the Veteran concerning a relationship between his sarcoidosis and military service are therefore not competent in this regard. To the extent that the Veteran has asserted that he has had sarcoidosis continually since service, the Board notes that it is aware of the provisions of 38 C.F.R. § 3.303(b), relating to chronicity and continuity of symptomatology in establishing service connection. However, the Federal Circuit has held that section 3.303(b) applies only to those chronic conditions specifically listed in 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Pertinently, sarcoidosis is not one of the listed chronic conditions. Therefore, establishment of service connection on the basis of continuity of symptomatology is not warranted. In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for sarcoidosis, to include as due to herbicide agent. The benefit sought on appeal is accordingly denied. ORDER Entitlement to service connection for sarcoidosis, to include as due to in-service herbicide exposure, is denied. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs