Citation Nr: 1331726	
Decision Date: 10/02/13    Archive Date: 10/07/13

DOCKET NO.  08-00 931	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to service connection for sarcoidosis.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

N. L. Rippel, Counsel







INTRODUCTION

The Veteran had active naval service from October 1961 to June 1962. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. 

The Veteran was scheduled for a videoconference hearing before a member of the Board in June 2009.  He failed to report for the scheduled hearing without explanation.  He has not requested that the hearing be rescheduled.  Therefore, his request for a Board hearing is deemed to be withdrawn.

In a November 2011 decision, the Board determined that new and material evidence had been submitted to reopen the Veteran's claim, and remanded the claim of entitlement to service connection for sarcoidosis to the RO via the Appeals Management Center (AMC).  The claim has been returned to the Board for appellate review.  


FINDING OF FACT

Sarcoidosis was not shown in service, sarcoidosis was not manifested to a compensable degree within one year of the Veteran's separation from active service, and the Veteran does not have sarcoidosis that is otherwise related to his active service or his asbestos exposure therein.


CONCLUSION OF LAW

Sarcoidosis was not incurred in or aggravated by active service and may not be presumed to have been so incurred.  §§ 1101, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 

REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

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 (2013), 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 and the claimant's representative, if any, 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 and the claimant's representative, if any, of 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.  Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008.

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). 

The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

The record reflects that prior to the initial adjudication of the claim, the Veteran was mailed a letter in December 2006 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence.  The December 2006 letter also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claim. 

The Board also finds the Veteran has been afforded adequate assistance in response to his claim.  The Veteran's service treatment records (STRs) and service personnel records (SPRs) are on file and VA Medical Center and private treatment notes have been obtained.  Social Security Administration (SSA) was contacted for relevant disability claim records and has indicated that an exhaustive search yielded no records.  Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim.  The Board is also unaware of any such evidence.

VA examination with respect to the issue on appeal was obtained in 2006, and addendum opinions were obtained in January 2007 and April 2012.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examination and addenda together are adequate.  The examiner considered all of the pertinent evidence of record and the statements of the Veteran, addressed the critical medical issues and specifically provided a rationale for the opinions stated, relying on and citing to the records reviewed.  Specifically, the Board finds the medical opinion that it is less likely than not that the Veteran's sarcoidosis is connected to the service-connected asbestosis, and the supporting rationale, to be responsive to the questions posed in the remand.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 

Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim.  The Board is also unaware of any such evidence. 

Accordingly, the Board will address the merits of the claims.



Legal Criteria

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  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).

The U.S. Court of Appeals for Veterans Claims (Court) has held that in order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) 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 disease or injury.  Hickson v. West, 12 Vet. App. 247, 253 (1999).

Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests sarcoidosis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.

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 Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection);  38 C.F.R. § 3.303(b).  The U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) is limited to the chronic diseases listed under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

In relevant part, 38 U.S.C. § 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. Sept 14, 2009). 

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").

Parenthetically, the Board notes that, in a January 2006 rating decision, the RO granted service connection for asbestosis with an evaluation of 30 percent.  Nonetheless, it notes that there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims.  However, VA has issued a circular on asbestos-related diseases.  DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular) provides guidelines for considering compensation claims based on exposure to asbestos.  The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21.  The Court has held that VA must analyze an appellant's claim of entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines.  Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993).

The guidelines provide that the latency period for asbestos-related diseases varies from 10-45 years or more between first exposure and development of disease. M21-1, part VI, para. 7.21(b)(1) and (2).  It is noted that an asbestos-related disease can develop from brief exposure to asbestos or as a bystander.

In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos.  Medical-nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service.  VA O.G.C. Prec. Op. No. 04-00.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Analysis

The Veteran asserts, as detailed in his September 2005 statement, that he has sarcoidosis that is a result of exposure to asbestos while serving aboard the USS Blackwood while in active service.  In his August 2001 21-526 claim form for service connection for sarcoidosis, he responded with "?" to the question of when his disability began.  In June 2005, he asserted that asbestos exposure in service caused asbestosis and in turn his sarcoidosis.  

In January 2007, the Veteran provided medical argument about his contentions that his sarcoidosis was related to asbestos exposure in service.  

STRs and SPRs are negative for treatment for or a diagnosis of sarcoidosis while the Veteran was in active service. 

A February 1985 report of a chest X-ray from Methodist Hospital indicates that the Veteran had undergone a lymph node biopsy which proved to be sarcoidosis.  A December 1987 letter from T.J.S., D.O., indicates that the Veteran presented with low back pains "in the beginning of November."  The doctor noted that the Veteran had a diagnosis of sarcoidosis and that he manipulated his Prednisone between 10 mg and 30 mg as he saw fit.  The doctor noted that he checked a chest X-ray which showed no sarcoidosis, and a pulmonary function test was normal, as was a blood battery.  A gallium scan for sarcoidosis showed no pick up in the lungs.  The doctor thus felt that sarcoidosis was not responsible for the Veteran's present complaints.  The Veteran had no good positive activity markers for sarcoidosis.  Because of this, he recommended a taper of the Prednisone.  X-ray from Methodist Hospital in November 1995 reveals no active disease in the chest.  

A January 2006 VA examination report noted that the Veteran had a history of sarcoidosis and noted that the disability was in no way related to the Veteran's diagnosed asbestosis.  The physician noted the Veteran's exposure to asbestos in service.  He also noted the history of clear cut evidence on X-ray of asbestosis.  His conclusions were: 1.  Asbestosis.  It is at least as likely as not that this disability is due to exposure in service.  2.  He had a history of sarcoidosis, which is totally unrelated to asbestosis.  

An October 2006 statement from the Veteran's treating physician, Dr. P.S., indicates that while there was no known definitive cause of sarcoidosis, the Veteran's sarcoidosis was a result of his asbestos exposure in active service.  

In a January 2007 addendum opinion from the January 2006 VA examiner, the examiner reports that it is highly unlikely that the Veteran's sarcoidosis is related to his diagnosed asbestosis.  He explained that he reviewed the letter from the Veteran's treating doctor as well as the medical literature.  He noted that sarcoidosis remains a disease of unknown etiology, and noted it was highly speculative that Dr. P.S. stated that asbestosis is related to sarcoidosis.  He noted that asbestosis is reasonably common and there is no evidence of an increase in sarcoidosis in this population.  

The Veteran was treated at Jefferson Hospital in January 2008 for an unrelated medical issue.  

In November 2011, the Board reopened the previously denied claim for sarcoidosis and remanded the claim on the merits.  An addendum opinion was obtained from the VA physician who authored the previous VA opinion and addendum.  The VA examiner reviewed the claims folder and reported that his opinion had not changed.  The VA examiner set forth a review of the record in his report, including Dr. P.S.'s opinion in its entirety.  After that review the VA physician noted that even Dr. S. stated that sarcoid disease has a true unknown definitive cause.  There is no question in the doctor's mind that asbestos can result in immune response causing the formation of granulomas.  The VA doctor emphasized, however, that the unanswered and unaddressed question by Dr. S. is whether the immune response forming a granuloma is sarcoidosis.  Neither sarcoidosis nor asbestosis are uncommon diseases.  Therefore, based on the fact that there is currently in the scientific community no association that is currently recognized as sarcoidosis being caused by asbestosis, it was the VA physician's medical opinion that Dr. S.'s statement reflected a degree of certainty of relationship between asbestos causing sarcoidosis of significantly less than 50%.  Therefore, it was the VA examiner's medical opinion that it is less likely than not that the Veteran's sarcoidosis is connected to the service-connected asbestosis.  

Under Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the Board must assess the credibility and weight to be attached to medical opinions.  Provided these opinions include adequate statements of reasons or bases, the Board may favor one opinion over another.  Wray v. Brown, 7 Vet. App. 488 (1995).  An assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference.  Rather, the Board must consider the weight to be placed on an opinion depending upon the reasoning employed to support the conclusion and the extent to which the physician reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).

In this case, 2012 VA opinion is a competent, persuasive and probative opinion against the claim, and is uncontroverted by any competent evidence.  The Board finds it significant that the VA opinion specifically addressed the statement of Dr. S. and offered a well-supported basis for rejecting that statement as a basis to establish a connection between sarcoidosis and asbestos exposure in service, as well as a connection between sarcoidosis and asbestosis.  The VA opinion, wholly against the claim, is adopted by the Board.  Accordingly, the Board must conclude that the preponderance of the evidence is against this claim.

The Board also acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg.  Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case.

Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for sarcoidosis is not warranted.


ORDER

Entitlement to service connection for sarcoidosis is denied.




____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs