Citation Nr: 1331768	
Decision Date: 10/02/13    Archive Date: 10/07/13

DOCKET NO.  08-00 690	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for sarcoidosis as directly incurred in or aggravated by service.

2.  Entitlement to service connection for vitiligo also as directly incurred in or aggravated by service.


REPRESENTATION

Appellant represented by:	Tennessee Department of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

The Veteran-Appellant


ATTORNEY FOR THE BOARD

A.E.H. Gibson, Associate Counsel 


INTRODUCTION

The Veteran served on active duty in the United States Army from August 1965 to August 1967, including a tour in Vietnam.  He was subsequently in the Naval Reserves from 1974 to 2004, with periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA).

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for sarcoidosis and vitiligo, including as due to exposure to herbicidal agents.

As support for his claims, the Veteran testified at a hearing at the RO in July 2009 before the undersigned Veterans Law Judge (VLJ) of the Board, also commonly referred to as a Travel Board hearing.

The Board later remanded the claims to the RO in December 2009 and April 2011, via the Appeals Management Center (AMC), for further development and consideration.

In August 2012, following completion of that development, the Board issued a decision denying these claims on the premise the sarcoidosis and vitiligo are presumptively the result of exposure to herbicides.  However, the Board instead REMANDED these claims to the extent they alternatively are premised on the notion these conditions were directly incurred in or aggravated by service.  The Board needed information concerning the exact times when the appellant was on ACDUTRA during his additional service in the Naval Reserves and, once that was determined, an addendum medical opinion.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).  After completing this additional development, the AMC continued to deny these claims in a June 2013 Supplemental Statement of the Case (SSOC), so they are again before the Board.


FINDING OF FACT

The preponderance of the evidence weighs against finding that the Veteran's sarcoidosis and vitiligo either incepted during or were aggravated by his active military service, including any period of ACDUTRA, or are otherwise related or attributable to his service.


CONCLUSIONS OF LAW

1.  His sarcoidosis is not the result of disease or injury incurred in or aggravated by his service and may not be presumed to be.  38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013).

2.  As well, his vitiligo is not the result of disease or injury incurred in or aggravated by his service.  38 U.S.C.A. §§ 1110, 1111, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Veterans Claim Assistance Act (VCAA)

The VCAA provides that VA has duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).


Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of the evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist him in obtaining; and, (3) that he is expected to provide.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2013).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Ideally, this notice should be provided prior to an initial decision on the claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a Statement of the Case (SOC) or Supplemental SOC (SSOC), is sufficient to "cure" the timing defect in the provision of the notice.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370 (2006). 

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the United States Court of Appeals for Veterans Claims (Court/CAVC) observed that a claim of entitlement to service connection consists of five 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. § 5103(a) (West 2002 & Supp. 2012).  So compliance with the first Quartuccio element requires notice of all five of these elements of the claim, including the "downstream" disability rating and effective date elements.  See Dingess, at 486.

But a VCAA notice error is not presumptively prejudicial, rather, must be determined on a case-by-case basis.  And as the pleading party attacking the agency's decision, the Veteran, not VA, bears this evidentiary burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).


Here, a VCAA notice letter sent in November 2006 informed the Veteran as to each element of notice as set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  The notice indicated the joint obligation between him and VA in obtaining pertinent evidence and information, and that VA would undertake reasonable measures to assist him in obtaining additional VA medical records, private treatment records and other Federal records.  The notice also provided information on the "downstream" disability rating and effective date elements.  As well, the notice was sent prior to the initial adjudication of his claims, so in the preferred sequence.  The Board therefore finds that he has received all required notice concerning his claims.

The VCAA further provides that VA has a duty to assist him in the development of these claims.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013).  This duty includes assistance in obtaining relevant records, including service treatment records (STRs) and other pertinent medical records, including regarding relevant evaluation and treatment since service, whether from VA or privately, as well as the provision of an examination when necessary to make a decision on the claim.  Id.  Conversely, there is no duty to assist if there is no reasonable possibility that assistance could result in substantiation of the claim.

The duty to assist in the development of these claims has been satisfied.  The Veteran's STRs and service personnel records have been obtained and associated with the claims file for consideration, as have his post-service VA and private medical treatment records.  He also was provided a VA compensation examination in July 2010 that subsequently was expanded on in July 2011 and June 2013, for medical nexus opinions regarding the etiologies of his sarcoidosis and vitiligo, and particularly concerning the alleged relationship between these conditions and his active duty (AD) military service and his periods of ACDUTRA, if pre-existing that additional service.  The reports of these examinations, especially when considered in the aggregate, contain this necessary opinions on these determinative issues of causation and aggravation and most importantly include explanatory rationale discussing the underlying bases.  So the Board finds the examination and opinions adequately informative to decide these claims.  The opinions are based on a comprehensive examination of the Veteran, which included consideration of his statements and medical records regarding the history of his disorders, and as are supported with explanatory rationale.  The opinions therefore have the necessary factual predicate and underlying medical basis, which is where most of the probative value of a medical opinion is derived, not just from mere review of the claims file and the conclusions ultimately reached.  See, e.g., Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

Also for these reasons, the Board is satisfied the AMC complied with the Board's December 2009, April 2011, and August 2012 remand directives, both in terms of obtaining all outstanding records concerning these claims and the necessary medical nexus opinions.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (another remand not required under Stegall where the Board's remand instructions were substantially complied with, even if not exact or total compliance per se), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of these claims, and is not prejudiced by any technical notice deficiency along the way.  It is difficult to discern what additional guidance VA could have provided him regarding what further evidence he should submit to substantiate these claims.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  

In regards to the July 2009 Travel Board hearing, the presiding VLJ complied with the provisions of 38 C.F.R. § 3.103(c)(2) (2013).  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court (CAVC) held that the VLJ chairing a hearing must comply with this VA regulation by fulfilling two duties, those being:  (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that may be potentially advantageous to the claimant's position.  Here, during the hearing, to this end, the presiding VLJ explained the bases of the prior decisions denying these claims, and in response the Veteran clarified that he is alleging entitlement to direct service connection, rather than presumptive service connection, although that, too, nonetheless was subsequently considered when denying these claims in August 2012 since the Board is obligated to consider all potential bases of entitlement.  See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004).  VA has a duty to address all arguments put forth by a claimant and/or theories under which entitlement to benefits sought may be awarded.  See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting that the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Buckley v. West, 12 Vet. App. 76, 83 (1998) (noting that where the RO and the Board have failed to address an argument reasonably raised by a claimant in support of a claim over which the Court (CAVC) has jurisdiction by virtue of a Notice of Disagreement (NOD) satisfying Veterans Judicial Review Act (VJRA) § 402, the Court will remand the claim with directions that the Board address the particular argument(s) in support thereof).  This includes the duty to address arguments a Veteran has specifically made as it relates to the adequacy of any given VA examination.

The Veteran and his representative thereby evidenced their actual knowledge of the requirements for establishing entitlement to service connection for these conditions.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim).

In addition, the presiding VLJ sought to identify any pertinent evidence not then of record that might have been overlooked or was outstanding that might tend to substantiate the claims.  Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they alleged or identified any prejudice in the conducting of that Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, as noted, evidenced his actual knowledge of the elements necessary to substantiate his claims as he fully explained his contentions and his medical history and why it is his belief these claimed disorders are directly, even if not presumptively, linked to his military service.  As such, the Board may proceed to adjudicating these claims based on the current record.

Standard of Review

In deciding these claims, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") file, and has an obligation to provide an adequate statement of reasons or bases supporting this decision.  See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  But while the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail.  See Gonzales, 218 F.3d at 1380-81.  The Board's analysis, therefore, focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, concerning the claims.  The Veteran must not assume the Board has overlooked pieces of evidence that are not explicitly discussed.  The law requires only that the Board address its reasons for rejecting evidence favorable to him.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).

The Board must assess the credibility and weight of all evidence, so including both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the Veteran.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, meaning about evenly balanced for and against the claim, with the Veteran prevailing in either event, or whether instead the preponderance of the evidence is against the claim, in which case the claim is denied.  Id.

Relevant Statutes, Regulations and Cases

Service connection is granted for disability resulting from a disease contracted or an injury sustained in the line of duty during active military service or for aggravation during service of a pre-existing condition beyond its natural progression.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013).

Active military service includes disability resulting from disease or injury incurred or aggravated during AD and ACDUTRA, and injuries, though not also diseases, incurred in or aggravated during INACDUTRA, also when a cardiac arrest or cerebrovascular accident occurs during such training.  See 38 U.S.C.A. §§ 101(24), 106 (West 2002).

Reserve and National Guard service generally means ACDUTRA and INACDUTRA.  ACDUTRA is full-time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505.  38 U.S.C.A. § 101(22) ; 38 C.F.R. § 3.6(c).  Basically, this refers to the two weeks of annual training, sometimes referred to as "summer camp," which each Reservist or National Guardsman must perform each year.  It can also refer to the Reservist's or Guardsman's initial period of training.

INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505.  38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d).  Basically, this refers to the twelve four-hour weekend drills, sometimes referred to as "weekend warrior" training, which each Reservist or National Guardsman must perform each year.  These drills are deemed to be part-time training.

Accordingly, service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing AD or ACDUTRA or from injury, but not disease, incurred or aggravated while performing INACDUTRA.  Id.; see also 38 U.S.C.A. §§ 106, 1110, 1131; 38 C.F.R. § 3.303(a). ACDUTRA includes full-time duty performed by members of the Armed Forces Reserves or the National Guard of any state.  38 C.F.R. § 3.6(c).  INACDUTRA includes duty other than full-time duty performed by a member of the Reserves or National Guard of any state.  38 C.F.R. § 3.6(d).


National Guard duty, however, is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state.  "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States [and a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor."  Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505.  Id.  

Further, to establish status as a "Veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA.  38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995).  The fact that a claimant has established status as a "Veteran" for purposes of other periods of service (e.g., the Veteran's prior period of AD) does not obviate the need for him to establish that he is also a "Veteran" for purposes of the period of ACDUTRA if the claim for benefits is premised on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998).

Similarly, in order for a claimant to achieve "Veteran" status and be eligible for service connection for disability claimed during his inactive service, the record must establish that he was disabled from an injury, but not disease, incurred or aggravated during INACDUTRA.  See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). 


Establishing entitlement to service connection on a direct-incurrence basis requires competent and credible evidence showing:  (1) the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an 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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995).

A disease or disability is considered to have been "aggravated" by service when it has increased in severity during service beyond its normal progression.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306.

Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred or aggravated in service.  38 C.F.R. § 3.303(d).

Certain specific diseases listed in 38 C.F.R. § 3.309(a) are considered chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (generally meaning to at least 10-percent disabling) within one year following separation from service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).

Also, if chronicity of disease or injury in service is not shown, or if it is legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim.  38 C.F.R. § 3.303(b).  Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity (permanency) of disease or injury in service to, in turn, link current disability to service.  See also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  That is, these second and third elements can be satisfied under 38 C.F.R. § 3.303(b) by competent and credible evidence demonstrating:  (1) the condition was observed ("noted") during service; (2) symptoms of that condition continued after service; and, (3) the current condition is related to those continuing symptoms.  The United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, rather recently held that this notion of continuity of symptomatology only can be alternatively used to establish this required linkage between the current condition and service if the condition being claimed is one of those explicitly recognized as "chronic" under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  One of the Veteran's conditions being claimed, sarcoidosis, is recognized as chronic under § 3.309(a), whereas vitiligo is not, so they will be adjudicated with this in mind.

Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) and (b) (2013).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  Medical evidence is generally, though not always, required to associate the claimed condition with service or a service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); and McQueen v. West, 13 Vet. App. 237 (1999).

So service connection may be established either by showing direct or secondary service incurrence or aggravation or by using applicable presumptions, if they are available.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine whether the evidence also is "credible", or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must additionally determine whether it is also credible).  Only if the evidence is both competent and credible does it ultimately have probative value.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (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")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).

Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

In ascertaining the competency of lay evidence, lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).


On the other hand, laypersons equally have been found not competent in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).  See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).  As the Federal Circuit Court has observed, lay evidence must "demonstrate some competence."  See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted).

Competent medical evidence, as opposed to lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").  As fact finder, when considering whether lay evidence is satisfactory, the Board may not only consider internal inconsistency of statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, but also the Veteran's demeanor when testifying at a hearing when he has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

In ultimately rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  To this end, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

The Veteran maintains that a rash he had during his AD service in July 1966 was the beginning of vitiligo, or that it eventually caused him to develop vitiligo.  He also asserts that his sarcoidosis is from exposure to foreign particles that got lodged in his chest cavity and aggravated his lymph nodes, and that this occurred from inhaling sawdust in June 1966, so also during his earlier AD service.  He says he sought treatment for both conditions during his AD service and again during his subsequent time in the Reserves.

He began serving on AD in August 1965 after a normal clinical evaluation of his lungs, chest and skin.

In January 1966, so during that initial AD service, he complained of a wheezing attack.  Tedrol was prescribed.

He was treated for a maculopapular skin rash in July 1966 with Benadryl and 
Solu-Cortef.

In October 1966 he reported having chest pains and difficulty breathing.  The diagnostic impression was an upper respiratory infection (URI).

During his separation examination in June 1967, he complained of having a history of hay fever, asthma, shortness of breath, and pain or pressure in the chest; however, his lungs and chest received a normal clinical evaluation.  He did not complain of a history of skin diseases, and his skin was also clinically evaluated as normal.

His AD service ended in August 1967.  He entered the Naval Reserves in 1974.

During his January 1974 enlistment examination for the Reserves, he did not complain of a history of breathing problems or of skin problems.  His lungs and chest were clinically evaluated as normal, as was his skin.

During a September 1976 examination, he complained of a history of asthma, and the evaluating physician clarified that the Veteran's last asthma attack was when he was 11 years old, so well before his military service.  He did not complain of any skin diseases.  As well, his lungs, chest, and skin were all clinically evaluated as normal.

In November 1977, his lungs, chest, and skin again were clinically evaluated as normal.  He also again did not complain of a history of breathing problems, nor did he complain of a history of skin problems.

He complained of a history of asthma and shortness of breath during an August 1978 examination, however, his lungs and chest were clinically evaluated as normal.  During that examination, which was on August 19, 1978, his vitiligo was diagnosed.  He had not complained of a history of skin diseases, and his skin was clinically evaluated as normal up to that point in time.

He had a period of ACDUTRA from August 20 to September 1, 1978, which began after his vitiligo diagnosis.  He had another period of ACDUTRA from June 1 to June 12, 1981.

In October 1981 he reported a history of asthma and shortness of breath, but not of skin diseases.  In the "Summary of Defects and Diagnoses" section of the Report of Medical Examination, the evaluating physician noted the Veteran had none except for depigmentation on his chest and extremities.  His skin was clinically evaluated as normal; however, he did have identifying marks due to a vaccination scar on his upper left arm and a two-inch scar on his left lower arm.  His lungs and chest were also evaluated as normal.

In July 1983, he reported a history of asthma and shortness of breath, and of skin diseases.  The Report of Medical Examination noted vitiligo.  His lungs, chest, and skin were clinically evaluated as normal.

He had a period of ACDUTRA from January 9 to January 20, 1984.

In March 1984, he reported a history of asthma and shortness of breath, and of skin diseases.  The evaluating physician clarified that the Veteran had mild vitiligo, and that his asthma and shortness of breath were childhood problems.  In the Report of Medical Examination, his lungs, chest, and skin were evaluated as normal.  It was observed he had scars on his neck, nose, temple, and upper left arm, and there was decreased pigmentation in several of his fingers.


He had a period of ACDUTRA from May 6 to May 17, 1985.

In May 1985, he reported a history of asthma and shortness of breath, and of skin diseases.  The evaluating physician observed the Veteran had a few patches of vitiligo, which had been present for about 5 or 6 years, and that his asthmatic episodes responded to inhalation treatment.  His lungs and chest were evaluated as normal, but his skin was abnormal because of a scar and a few small patches of depigmentation.

In March 1986 he reported a history of asthma and shortness of breath, and of skin diseases.  He was noted to have had asthma as a child, and current vitiligo, but otherwise in good health.  His lungs, chest, and skin were evaluated as normal, although his skin had noted depigmentation on his neck.

He had a period of ACDUTRA from April 26 to May 9, 1986.

In March 1987, he reported a history of asthma and shortness of breath, and of skin diseases.  It again was noted that he had had asthma as a child, and that his last episode of shortness of breath was approximately 4 years earlier.  He was noted to have been diagnosed with vitiligo about 6 or 7 years prior, and he was receiving weekly treatment for it.  The Report of Medical Examination showed an abnormal evaluation of his skin, and that he had patches of depigmentation on his neck, ears, right eyelid, and distal fingertips.  His lungs and chest were clinically evaluated as normal.

He had a period of ACDUTRA from April 3 to April 17, 1987.

In March 1988, he reported a history of asthma and shortness of breath, and of skin diseases.  It was clarified he had vitiligo around his neck in a collar pattern and on his wrists.  His asthma was noted to be worse when he was a child, and his last attack was more than 5 years prior.  In the Report of Medical Examination, his skin was evaluated as abnormal, and vitiligo was noted.  His lungs and chest were normal.

He had a period of ACDUTRA from May 31 to June 10, 1988.

In April 1989, he reported a history of asthma and shortness of breath, and of skin diseases.  It was clarified that he currently had vitiligo and childhood asthma.  He had spots of vitiligo on his neck, perineum, scrotum, and penis, and his skin was evaluated as abnormal, but the rest of the examination was normal.

He had a period of ACDUTRA from August 12 to August 27, 1989, and from July 13 to July 27, 1990.  Thereafter, he did not have any additional periods of ACDUTRA.

In March 1992, he reported a history of asthma and shortness of breath, and of skin diseases.  It was clarified that he currently had vitiligo and childhood asthma.  The Report of Medical Examination noted he had vitiligo in various places, but the entire physical examination was normal.

In March 1994, he reported a history of skin diseases, asthma, and shortness of breath, and it was clarified he currently had vitiligo and had asthma as a child.  The Report of Medical Examination did not note vitiligo, and the entire physical examination was normal. 

During a February 1995 consultation to evaluate his hypertension, he was diagnosed with hilar adenopathy.  In May 1995 he followed up with his private physician, who diagnosed stage 1 sarcoidosis, which was treated with prednisone.

During a retention examination in August 1995, his lungs were clear to auscultation and he was not wheezing.  However, it was noted that he then recently had been diagnosed with sarcoidosis.  The examining physician indicated the Veteran probably had the hilar lymphadenopathy for about two years, and that the sarcoidosis did not appear to be debilitating or ongoing.  It was noted he would see his primary physician for treatment.  His lungs and chest were clinically evaluated as abnormal, but his skin was evaluated as normal.

His February 1997 Report of Medical Examination noted he had vitiligo, but his skin was evaluated as normal.  His lungs and chest were also evaluated as normal.  

In the March 2002 Report of Medical Examination, his skin was evaluated as abnormal, and some areas of depigmentation were noted.  The remainder of that examination was normal.

A February 2009 Report of Medical History noted a history of skin problems, which he labeled as vitiligo, as well as a history of asthma and shortness of breath.  He denied all other problems.  The evaluating physician clarified the Veteran had had asthma as a child.

The Veteran had a VA compensation examination in July 2010 for an opinion on whether a relationship existed between his disabilities and his service.  In regards to sarcoidosis, he reported being diagnosed with this condition approximately 8 to 10 years prior to that examination, so in or around 2000 to 2002.  He said that he had experienced breathing problems in the military and was given medication.

The examiner prefaced her opinion with a discussion on the causes of sarcoidosis.  She indicated that scientists have hypothesized that sarcoidosis is caused by several different occupational and environmental exposures, but only beryllium and its salts have been shown to produce the granulomata that are similar to that seen in sarcoidosis.  She said that studies have largely failed to identify an external agent or agents responsible for sarcoidosis, despite intensive efforts.  She indicated there is some support in the literature that infection with mycobacterium is an etiological agent.  Sarcoidosis and mycobacterium tuberculosis are similar histologically, and evidence of mycobacterium tuberculosis has been found in sarcoid tissue; however, these findings have not been confirmed.  There have been studies finding a connection between sarcoidosis and propionibacterium, but a causal relationship has not been found.  It has been found to have a genetic component, with first-degree relatives of sarcoid patients having a higher rate of diagnosis.  The results of other studies have suggested the genetic background of the sarcoid patient may account for the clinical hetergeneity of sarcoidosis.  Some genes have been associated with increased susceptibility to sarcoidosis.  In certain sub-groups of patients, including African-Americans, the severity of sarcoidosis has been linked to angiotensin converting enzyme.  Comparison studies of healthy lung tissue to lung tissue in an active sarcoidosis sufferer have shown that the sarcoid patient has over-expression of two gene networks.  Other studies have postulated that CD4+ T cells have an active role in initiating the disease process; however, it is not known what sarcoid antigens cause this response.  She said that sarcoidosis has a well-known association with abnormalities in calcium regulation, and there is also a possible association between sarcoidosis and common variable immunodeficiency (CVID).  In sum, she indicated there have been advances in the immunopathogenesis of sarcoidosis, but its etiology remains a mystery.  She said that no single agent or genetic aspect has been clearly implicated in the pathogenesis of sarcoidosis.  

That July 2010 VA examiner went on to opine that this Veteran's sarcoidosis was not related to his AD service.  She pointed out he had asthma as a child and that he was treated for shortness of breath during his AD service with an asthma medication that is no longer available.  She observed he was diagnosed with sarcoidosis in 1995, nearly 30 years following the conclusion of his AD service, and opined that it was more likely related to the multiple possible causes listed in her discussion.

In regards to the vitiligo, the Veteran reported being diagnosed in the late 1970s.  He had hypopigmented areas of skin by his right eyebrow, neck, lips, palms of his hands, anterior wrists, scalp, lower legs, feet, and chest.

In initially discussing vitiligo, the examiner indicated the precise cause of vitiligo is unknown, although genetic factors appear to play a role because 20 to 30 percent of patients have a family history of the disorder.  The disease is thought to involve an autoimmune process directed against melanocytes, because histological studies of affected skin have shown an absence of melanocytes.  Many vitiligo patients also have other autoimmune diseases.  Studies have found alterations in cellular and humoral immunity in patients with vitiligo.  Additionally, some vitiligo patients have been found to have multiple autoantibodies against melanocyte antigens, although the role of these autoantibodies in the pathogenesis of the disease remains unclear.  Studies suggest that cytokines may play an important role in the development of vitiligo.  She said that many different hypotheses have been proposed to explain the pathogenesis of vitiligo.

But just as in the case of the sarcoidosis, that July 2010 VA examiner ultimately opined that the Veteran's vitiligo was unrelated to his AD service.  She noted that it was diagnosed after his separation from AD service, with no vitiligo found during his service.  She said the rashes the Veteran had in service were not vitiligo.  She opined that his vitiligo was more likely due to one of the variable causes mentioned in her discussion.

In July 2011, that July 2010 VA examiner expounded on her previous opinions to also address the likelihood the Veteran's sarcoidosis and vitiligo alternatively had manifested during a period of ACDUTRA service.  She indicated he was unable to list the exact date that he had contracted sarcoidosis or first observed vitiligo.  She said he had indicated to her that he was in the Reserves for 30 years, which involved a two-week yearly training period.  She noted this would leave 50 weeks out of the year in which he was not in training.  She opined that it was statistically very unlikely that these diseases had manifested during his two weeks of training and statistically very likely that they, instead, had developed during his fifty weeks of inactive status.

In June 2013, that July 2010 VA examiner further expounded on her previous opinions to additionally address the likelihood that the sarcoidosis and vitiligo, which were diagnosed after separation from AD service but not during a period of ACDUTRA service, were aggravated by a subsequent period of ACDUTRA service.  In further commenting, she noted that she had based her opinion on medical records dated in October 1981, July 1983, March 1984, May 1985, March 1986, March 1987, March 1988, April 1989, March 1992, March 1994, August 1995, February 1997, March 2002, and February 2009.  She opined that the sarcoidosis and vitiligo were not aggravated by any subsequent periods of ACDUTRA because she was unable to find any evidence in the Veteran's medical records suggesting these diseases were aggravated by this service.

To reiterate, the Veteran's last period of ACDUTRA was in 1990.  His sarcoidosis and vitiligo were not diagnosed during his AD service or during a period of ACDUTRA service.  Thus the relevant inquiries are whether these diseases nonetheless were caused by his AD service or, if not, whether they alternatively were aggravated beyond their normal progression during a period of ACDUTRA.  As already explained, service connection may be granted for disability resulting from injury, though not also disease, incurred or aggravated while performing INACDUTRA.  Because the Veteran's disabilities are diseases, his periods of INACDUTRA service are irrelevant to the inquiry.

When considering the collective body of relevant evidence, the Board finds the preponderance of this evidence is against finding that either disease, sarcoidosis or vitiligo, is related to or the result of or aggravated by this Appellant's service.  

His statement alleging that inhalation of sawdust led to his sarcoidosis is not probative.  He has not been shown to have the necessary medical training or expertise to render a competent opinion on the etiology of his sarcoidosis, particularly to comment on this alleged source.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  Indeed, the VA examiner indicated that, while no single agent has been found to be clearly implicated in the pathogenesis of sarcoidosis, only beryllium and its salts have been shown to produce the granulomata that are seen in sarcoidosis.

Equally, this Appellant's statements alleging that the rash he had in service was vitiligo, or that it lead to vitiligo, also are not probative.  Again, he has not been shown to have the necessary medical training or expertise to competently diagnose the rash he had in service or to ascribe certain symptoms to it, which was identified at the time by a physician as maculopapular, or to opine that the maculopapular rash was a precursor to vitiligo.  See id.  Indeed, his theories have been investigated and rejected by competent medical authority.  Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007).  His statements that the rash in service caused him to lose pigment and that he sought treatment in service for vitiligo are not probative for the same reasons.

He also has alleged that the pigment in his skin was damaged due to his rash in service.  To the extent he is alleging that he began experiencing depigmentation in service, the Board does not find this assertion probative.  He is competent to attest to the loss of pigmentation and when he first noticed it because this is readily perceptible even to the naked eye.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (a layperson is competent to report symptoms that are non-medical in nature, such as the presence of a rash, as well as to attest to his or her own experiences).  However, the Board does not find his lay testimony concerning this also credible, that is, that he began losing skin pigmentation while still on AD.  The contemporaneous medical evidence, which also must be considered, does not show depigmentation until August 1978, over ten years following separation; thereafter, his vitiligo and depigmentation are consistently indicated, either as a history of a skin disease or as a then current problem or both.  Rucker v. Brown, 10 Vet. App. 67 (1997) (when determining whether lay evidence is satisfactory, the Board may consider its consistency with other evidence submitted on behalf of the Veteran).  His skin was clinically evaluated as normal upon separation from AD, and the Board places more weight on a clinical evaluation performed years ago by medical professionals specifically for evaluation and treatment purposes, than it does on his more recent statements to VA in connection with his claim for monetary compensation and other benefits.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the Veteran, long after the fact); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a Veteran's testimony simply because he is an interested party; personal interest, however, may affect his credibility).

The VA examination reports provide the most probative weight as concerning the onset and etiology of his sarcoidosis and vitiligo.  The examiner provided lengthy discussions on each of these diseases, setting forth some of the findings that have been found in regards to etiology and pathogenesis.

She opined that it was unlikely the sarcoidosis was related to this claimant's AD service because he was only treated for shortness of breath one time, and he was not diagnosed with sarcoidosis until 1995, so not until nearly 30 years following his separation from AD service.  She indicated this disease was more likely to be related to one of the causes she had noted in her July 2010 discussion.  She further indicated that it was statistically very unlikely the sarcoidosis had incepted during a subsequent period of ACDUTRA, which is only about two weeks during a given year, as opposed to manifesting during inactive status, which makes up the remaining 50 weeks out of any given year.  Finally, she did not find his sarcoidosis to have increased in severity during this additional service beyond its normal progression at any time after it was diagnosed.

In regards to the vitiligo, she opined that it, too, was unlikely related to this claimant's AD service.  She determined the rash he had during his AD service was identified as something other than vitiligo, and she apparently had no reason to question the correctness of that other diagnosis.  She opined that it, instead, was more likely than not the vitiligo was due to one of the variable causes in her July 2010 discussion, none of which had anything to do with the Veteran's service.  She also indicated it was statistically very unlikely this disease had incepted during a period of ACDUTRA, as those periods represented only about two weeks out of a given year versus the other 50 weeks when the Veteran was in inactive status (or, as explained, merely performing INACDUTRA that does not qualify for disease, only instead an injury).  She also did not find any evidence that his vitiligo had increased in severity during his service beyond its normal progression.

There is no other evidence in the file that probatively outweighs the VA examiner's unfavorable opinions, indeed, the opinion is entirely uncontroverted.

As already alluded to, the Veteran's sarcoidosis is a "chronic disease" according to 38 C.F.R. § 3.309(a).  Therefore, the Board additionally has considered whether service connection is established by way of the presumptions set forth in 38 C.F.R. §§ 3.307(a), 3.309(a) and 3.303(b).  Under section 3.307(a), a chronic disability is presumed to be service connected if it manifests to a compensable degree within the first year following service.  Consider also, however, that presumptive periods only apply to AD service, not also ACDUTRA and INACDUTRA service.  In fact, the same is true for the presumptions of soundness and aggravation.  See Biggins, 1 Vet. App. at 477-78; Smith v. Shinseki, 24 Vet. App. 40 (2010).

The Veteran separated from AD service in August 1967, and the competent and credible evidence does not show sarcoidosis until many years later, in 1995 at the earliest, which was well more than one year following the conclusion of his AD service.  Under section 3.303(b), if a chronic condition was shown in service and then subsequently manifested after separation from service, it will be presumed to be service connected unless clearly attributable to other ("intercurrent") causes.  But the Veteran was not diagnosed with sarcoidosis during his service, so this disease was not initially "noted" during his service.  Thus, his claim of entitlement to service connection for sarcoidosis cannot be granted on the basis of its subsequent manifestation or with the benefit of the chronicity presumptions.

In sum, the preponderance of the evidence is against his claims.  It is undisputed that he has sarcoidosis and vitiligo; however, they have not been shown to have initially manifested during his military service, within one year after the conclusion of his AD service in the case of the sarcoidosis, or to otherwise be related to his service in any way, including aggravated by his additional service on ACDUTRA over and above their normal progression.  Accordingly, these claims of entitlement to service connection for these diseases must be denied since the preponderance of the evidence in against these claims, in turn meaning the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).



ORDER

The claim of entitlement to service connection for sarcoidosis is denied.

The claim of entitlement to service connection for vitiligo also is denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs