Citation Nr: 1337192	
Decision Date: 11/15/13    Archive Date: 11/26/13

DOCKET NO.  09-46 084	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to service connection for sarcoidosis.


ATTORNEY FOR THE BOARD

E. D. Anderson, Counsel


INTRODUCTION

The Veteran served on active duty from September 1962 to February 1984.  This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.  Jurisdiction is currently with the RO in Roanoke, Virginia.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The Veteran's sarcoidosis did not have onset in service or within one year of service and was not caused by his active service, to include exposure to herbicides.  


CONCLUSION OF LAW

The criteria for entitlement to service connection for sarcoidosis have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013).  


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has reviewed all of the evidence in the claims folder.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims.  

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  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.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence.  

Service Connection

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013).  In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 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 v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).  

However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013).  For disabilities that are not listed as chronic, the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d).  Sarcoidosis is recognized as a chronic condition by 38 C.F.R. § 3.309(a).

Additionally, certain chronic diseases, such as sarcoidosis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service.  See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2013). 

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2013). 

As noted above, the Veteran is seeking entitlement to service connection for sarcoidosis.  The Veteran's service treatment records are negative for a diagnosis of or treatment for sarcoidosis in service and there is no evidence in any private treatment records submitted by the Veteran that his claimed disability manifested to a compensable degree within one year after separation from service.  Available records show that the Veteran was first diagnosed with sarcoidosis in 1989, five years after his active service.

In his November 2009 substantive appeal, the Veteran pointed out that because the onset of sarcoidosis is often gradual and progressive, it is difficult to determine when the disease first manifests.  He alleges that his sarcoidosis could have developed in service or within one year of service and simply have remained undetected.  

While the Board cannot say that it is impossible that the Veteran's sarcoidosis developed in service and was simply not detected on any of the many examinations the Veteran received in service, the Veteran has not pointed to any symptoms in service that he believes are evidence that his claimed condition developed many years before it was first diagnosed.  Absent competent and credible evidence of symptomatology in service or within one year of service, the Veteran's argument that his condition developed in service is simply speculation, which is not a basis for granting disability benefits.  

VA regulations also provide that if a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service: AL amyloidosis, chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus); Hodgkin's disease; chronic lymphocytic leukemia (CLL); multiple myeloma; Non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease.  38 C.F.R. § 3.309(e) (2013).

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 service.  39 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2013).  

Here, the Veteran served in the Republic of Vietnam, and exposure to herbicides is therefore presumed.  However, sarcoidosis is not one of the diseases for which service connection can be granted on a presumptive basis based on exposure to herbicides.  

Importantly, VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined a presumption of service connection is warranted.  61 Fed. Reg. 41,446 (1996); 59 Fed. Reg. 341-46 (1994).  However, an appellant is not precluded from establishing service connection with proof of actual direct causation.  Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). 

As service connection cannot be granted for sarcoidosis on a presumptive basis, either as a chronic disease or based on exposure to herbicides, the only remaining grounds for establishing service connection is to show that the Veteran's sarcoidosis was caused by some injury or event in service.  

In his substantive appeal, the Veteran has quoted an article from the American Journal of Respiratory and Critical Care Medicine, which notes that "...although the cause(s) of sarcoidosis remain unknown, there are three different lines of evidence supporting the idea that sarcoidosis results from exposure of genetically susceptible hosts to specific environmental agents...".  The Veteran argues that this statement supports his contention that his sarcoidosis was caused by exposure to Agent Orange.  However, the Board notes that a general statement of medical principal that exposure to unspecified "environmental agents" may lead to the development of sarcoidosis in genetically susceptible individuals is not proof that in this specific case, exposure to a very specific environmental agent, Agent Orange, caused the Veteran's claimed condition.  

In order to establish service connection for his sarcoidosis, it is not enough to show that a relationship between his in-service exposure to Agent Orange and his sarcoidosis is within the realm of possibility.  To establish service connection, the Veteran must meet a higher standard; he must show not only that the claimed relationship is possible, but also that it is at least as likely as not (50 percent probability or greater) that his sarcoidosis is due to herbicide exposure in service.  

While the Veteran appears sincerely convinced that his sarcoidosis is related to his active military service, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions.  In other words, he is a layman, not a medical expert.  The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology).  Evidence, however, must be competent evidence in order to be weighed by the Board.  Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case.

In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding.  Id.  In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes 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.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable.  The Board finds that the question of whether the Veteran currently has sarcoidosis due to his herbicide exposure in service is too complex to be addressed by a layperson.  This connection or etiology is not amenable to observation alone.  Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals.  Hence, the Veteran's opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight.

While the Veteran has provided private medical records showing treatment for sarcoidosis, none of his treatment providers has offered a medical opinion concerning the etiology of the Veteran's condition, and there is no competent medical evidence of record establishing a nexus between the Veteran's sarcoidosis and service.

Accordingly, based on all the above evidence, entitlement to service connection for sarcoidosis is denied.  The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013).

The Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants 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 and 3.326(a) (2013).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from 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.  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  

Here, the VCAA duty to notify was satisfied by a letter sent to the Veteran in October 2008.  This letter informed the Veteran of what evidence is required to substantiate his claim, as well as of VA and the Veteran's respective duties for obtaining evidence.  The Veteran was also informed of how VA assigns disability ratings and effective dates.  

VA also has a duty to assist the veteran in the development of the claim.  This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

The RO has obtained the Veteran's service treatment records.  The Veteran also submitted private medical records.  

In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration.  These four factors are:  (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4).  

With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service.  The types of evidence that "indicate" that a current disability "may be associated" with military 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.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service.  Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277.  On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection.  Waters, 601 F.3d at 1278-1279.  Here, the only evidence that the Veteran's sarcoidosis is related to his military service is his own unsupported lay statements.  Accordingly, the Board finds that referral for a VA medical examination is not warranted.  

Significantly, the appellant has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).


ORDER

Entitlement to service connection for sarcoidosis is denied.  



____________________________________________
K. Parakkal
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs