Citation Nr: 1329632 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 10-06 720 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES Entitlement to service connection for sarcoidosis, to include as secondary to service-connected asbestosis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Navy from August 1954 to November 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The claim has been before the Board on a previous occasion, and was remanded in September 2012 for evidentiary development. In May 2013, the case was dispatched to the Veterans Health Administration (VHA) for an expert medical opinion. All required actions have been completed. The Veteran's entire claims file, to include the portion contained in the electronic "Virtual VA" system, has been reviewed in this case. FINDING OF FACT The evidence of record does not indicate that the Veteran experiences sarcoidosis or any other lung disability save for his already service-connected asbestosis. CONCLUSION OF LAW The criteria for service connection for sarcoidosis have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Applicable law provides that service connection will be granted if it is shown that the Veteran experiences a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Establishing service connection generally requires 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 Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic conditions, such as sarcoidosis, if manifest to a compensable degree within the first post-service year, will be presumed to have been incurred in active service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309 (2012). Further, as this is a regulatorily-established "chronic disease," it is capable of service connection via a showing of continuity of symptomatology between service and present. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331. Additionally, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. See 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a nonservice- connected disability caused by a service- connected disability. See Allen v. Brown, 7 Vet.App. 439 (1995). In this regard, Congress has specifically limited entitlement to service connection for disease or injury to cases where such have resulted in a disability. 38 U.S.C.A. § 1110. Thus, in the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The United States Court of Appeals for Veterans Claims (Court) has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly affirmed by the United States Court of Appeals for the Federal Circuit (Federal Circuit), which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In the current case, the Veteran alleges that he developed sarcoidosis either directly as a result of his naval service, to include as a result of exposure to asbestos while serving aboard ship, or, alternatively, as a secondary consequence of his service-connected asbestosis. The record does include documentation of shipboard service, and as asbestosis has been service-connected, exposure to asbestos has, itself, been established for this Veteran. In September 2012, the Board noted that the Veteran had not, as of that time, been afforded a VA examination to determine the nature and etiology of any pulmonary disabilities. It was ordered that a comprehensive VA examination be afforded. The returned examination report, dated in October 2012, was not felt to be sufficient to resolve the issue on appeal. Specifically, the report of examination was issued by an advanced practice nurse (APN) who noted "minimal interstitial fibrosis in the right lung base" that was "conceivably" related to sarcoidosis. With respect to etiology, however, the APN stated that "the exact etiology and pathogenesis" of sarcoidosis "remain unknown." Further, the examiner explained that the "Veteran is without current findings of sarcoidosis or chronicity of symptoms." The Board, in a request for an expert pulmonary opinion dated in May 2013, noted that establishing an "exact etiology" was not required in this case. Rather, it was enough to show that it was at least as likely as not that sarcoidosis, if present, and however minimal in presentation, was etiologically related to service-connected asbestosis or, alternatively, directly to asbestos exposure in service. A pulmonology opinion, authored by a pulmonologist with the Philadelphia VA Medical Center (VAMC) was returned to the Board. The opinion, dated in June 2013, was based on a thorough claims file review. In it, the pulmonologist stated that "it is not at least as likely as not that...sarcoidosis had causal origin in service, including exposure to asbestos. Furthermore, in my opinion, it is not at least as likely as not that...sarcoidosis was caused or aggravated beyond the natural course of the disease process by the appellant's service-connected asbestosis." As a rationale, the pulmonologist explained that he had reviewed medical literature, and that he "cannot find any association or link between asbestosis and sarcoidosis." It was explained that "asbestosis is the interstitial lung disease (so-called pulmonary fibrosis) related to inhalation of asbestos fibers." He stated that "the fibers accumulate in the lungs and cause inflammation and fibrosis." Sarcoidosis, in contrast, "is a systemic inflammatory syndrome potentially involving many different organ systems whose cause is unknown." While the "chest radiograph and CT scan reports are consistent with asbestos exposure," the pulmonologist stated that "there are no findings based on these two radiographic studies to even suggest the presence of sarcoidosis" (emphasis added). It was clarified that any diagnosis of sarcoidosis was based "on the history provided by the appellant," but "in any case, there is no relationship between asbestosis and sarcoidosis." In order for service connection to be warranted, it is necessary, first and foremost, for a current disability to be established. See Brammer at 223. In the current case, it is not apparent that the Veteran has a diagnosis of sarcoidosis that has been confirmed by radiographic and other objective testing; however, he has been noted to have had some complaints of the condition by history. The 2008 APN assessment indicated pathology that is "conceivably" consistent with sarcoidosis, which is hardly an unequivocal endorsement of the condition being present. This examiner also noted that there was no currently- identified sarcoidosis pathology upon radiographic examination. The VHA pulmonologist reviewed the entire file, to include the radiographic history, and noted the difference in presentation between interstitial lung disease related to asbestosis and inflammatory sarcoidosis. That clinician stated that the clinical evidence did not support a finding of a diagnosis of sarcoidosis, and even if one were to be present (and only the self-reported history of the Veteran would support such a finding), the medical literature did not support a linkage between asbestosis and sarcoidosis. The Board notes that the APN's assessment only noted the "conceivable" existence of sarcoidosis, and as this was the case, an opinion of a specialist was sought. The VHA pulmonologist is an expert in pulmonary medicine, and his review, which was well-rationalized and fully explained, essentially determined that sarcoidosis was not present. Indeed, the only noted diagnosis of sarcoidosis comes from the Veteran's own unsubstantiated lay testimony. With regard to the Veteran's testimony, the Board acknowledges that the Federal Circuit has suggested that laypersons perhaps can establish the required nexus to service in some cases. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (vacating and remanding a decision in which the Court categorically held in a service connection case that "'a valid medical opinion' was required to establish nexus, and that [a lay person] was 'not competent' to provide testimony as to nexus because [that individual] was a layperson."). However, the Court has also held that a layperson, such as the Veteran, is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated that lay evidence is competent and sufficient in certain instances related to medical matters. Specifically, the Federal Circuit commented that such instances include establishing 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. Id. Similarly, the Court has held that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, regarding the issue of a diagnosis of sarcoidosis, and in taking the above holdings together, the Board finds that the Veteran's contentions regarding being diagnosed with sarcoidosis are not statements about symptomatology or an observable medical condition. Rather, these contentions are statements of medical diagnoses and causation. Such statements clearly fall within the realm of opinions requiring medical expertise. The Veteran has not demonstrated any such expertise. Hence, his contentions are not competent medical evidence of the diagnosis of the claimed disability. On the other hand, the findings of the 2013 VHA pulmonologist are detailed, and well-rationalized. The doctor noted what constitutes sarcoidosis, and stated that radiographic records did not establish the presence of that disability. The pulmonologist reviewed the history of complaints post-service, the in-service history, and the entirety of the claims file when coming to his conclusion. It is not conclusory and is highly probative against the Veteran's contentions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Simply put, the competent and credible evidence weighs against a finding that the Veteran currently experiences sarcoidosis. The Veteran's own unsubstantiated lay assertions, which are the sole basis for any historical assessment of sarcoidosis, are outweighed by the expert pulmonologist's assessment of the radiographic evidence. The Veteran's assertions do not place the evidence into relative equipoise, and the Board must deny the claim. In reaching the above determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. 38 U.S.C.A. § 5107(b) (West 2002); see also Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim for service connection. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Compliance with the first Quartuccio element requires notice of the five service connection elements: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C.A. § 5103(a); see also Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). It is pertinent to note that the Veteran is represented by a veterans service organization, and that organization is presumed to have knowledge of what is necessary to substantiate a claim for service connection. Neither the Veteran nor his representative have pled prejudicial error with respect to the content or timing of VCAA notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with 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. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran has been provided with a VA examination and an expert VHA review to address the existence of a current disability and, if present, its etiology. As discussed in detail above, these reports, collectively, thoroughly discuss the nature of the Veteran's claimed disability picture. Accordingly, they are adequate to resolve the issue of entitlement to service connection. Indeed, regarding VA's duty to assist the Veteran in obtaining evidence needed to substantiate his claim, the Board finds that all necessary assistance has been provided in this case. There is no duty to provide another examination or a medical opinion. See 38 C.F.R. §§ 3.326, 3.327 (2012). ORDER Entitlement to service connection for sarcoidosis, to include as secondary to service-connected asbestosis, is denied. ______________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs