Citation Nr: 1342826 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 09-34 187 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for sarcoidosis. REPRESENTATION Appellant represented by: Evelyn Beacham, Attorney-at-Law WITNESS AT HEARING ON APPEAL The Veteran and her spouse, Mr. R.R. ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty from September 1980 to October 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the Veteran's claim of entitlement to service connection for sarcoidosis. In August 2013, the Veteran and her spouse, accompanied by the Veteran's attorney, appeared at the RO to present evidence and oral testimony in support of her claim before the undersigned Veterans Law Judge. A transcript of this hearing has been obtained and associated with the Veteran's claims file for the Board's review and consideration. For the reasons discussed below, the appeal is REMANDED to the Atlanta, Georgia, VA Regional Office. VA will notify the Veteran and her attorney if any further action is required on their part. REMAND Although no medical examination for a nexus opinion has been provided to the Veteran, the Board finds upon closer examination of the relevant evidence that a remand for such evidentiary development is warranted. The Veteran's service medical records do not present a diagnosis of sarcoidosis during active duty. She was medically separated from service in October 1984 because of a pregnancy. The post-service medical records associated with the case show that she was first diagnosed with sarcoidosis in October 1991, seven years after leaving military service. The Veteran's general contention is that her sarcoidosis had its onset during active duty, manifested by a constellation of symptoms that are clinically documented in her service medical records during the course of her period of active duty. These documented symptoms included shortness of breath, dry cough, spontaneous joint pain of unknown cause without precipitating trauma or injury, skin lesions and rashes (including a possible early erythema nodosum lesion that was diagnosed in service in November 1981), and a fibroadenoma tumor in her breast, which was surgically excised in service in January 1982. At the August 2013 Board hearing, the Veteran and her husband testified that the above symptoms continued immediately following her discharge from service and persisted to the present time. Although the Veteran submitted post-service private medical records indicating recent treatment for chronic sarcoidosis, these do not present any objective clinical opinion linking this disease to her period of active duty. The Board has conducted its own online research on sarcoidosis. Our doing so in this case does not violate the holding of the United States Court of Appeals for Veterans Claims (Court) in the case of Colvin v. Derwinski, 1 Vet. App. 171 (1991), as our research is merely to support our determination that the case requires further evidentiary development and not to make any medical determinations outside of our competence to decide the claim on the merits. Our research indicates that this disease, which affects the lungs and internal organs, is difficult to diagnose because its symptoms mimic other diseases or ailments and fluctuate in intensity over time, sometimes being asymptomatic. Therefore, it is possible that the constellation of symptoms noted in service could be manifestations of sarcoidosis. Of special significance is the notation in service of a possible early erythema nodosum lesion, as erythema nodosum is a known clinical manifestation of sarcoidosis. The Board also finds that there was no opportunity to radiographically detect the presence of lung lesions consistent with sarcoidosis in service because no chest X-ray was administered during separation examination due to the Veteran's pregnancy. VA's duty to assist in the development of a claim includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. In the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. McLendon v. Nicholson, 20 Vet. App. 79, 82-83 (2006); 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). The Board finds that the present case meets all four elements of this test: (1) there is a current clinical diagnosis of sarcoidosis, (2) there are medically documented signs and symptoms in service that may be manifestations of sarcoidosis, (3) the Veteran and her spouse have presented competent testimony of continuity of such symptoms since separating from service, and (4) a nexus opinion addressing the likelihood that the current diagnosis of sarcoidosis had its onset in active service is needed in order to decide the claim. Therefore, the case should be remanded to the RO for appropriate evidentiary development, including scheduling the Veteran for a medical examination to obtain a nexus opinion. Accordingly, the case is REMANDED to the RO for the following action: 1. After obtaining the appropriate waivers, the RO should attempt to obtain copies of updated VA and/or private medical records pertinent to the Veteran's treatment for her sarcoidosis that have not yet been associated with the evidence. All records obtained must be associated with her claims folder. If the RO cannot obtain records identified as relevant by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard. 2. Following completion of the above, schedule the Veteran for an appropriate VA medical examination in connection with the claim for service connection for sarcoidosis. [Advise the Veteran that failure to appear for an examination as requested, and without good cause, could adversely affect her appeal. See 38 C.F.R. § 3.655 (2013).] The examining clinician should review the Veteran's pertinent clinical history contained in her claims file. All tests and studies deemed appropriate by the examiner should be conducted. Thereafter, based on the clinical findings obtained on examination and the review of the pertinent clinical history contained in the Veteran's claims file, the examining clinician should present an opinion as to the following: Given the nature of sarcoidosis and in view of the Veteran's documented symptoms in service, which include shortness of breath, dry cough, spontaneous joint pain of unknown cause without precipitating trauma or injury, skin lesions and rashes (particularly a possible early erythema nodosum lesion that was diagnosed in service in November 1981), and a fibroadenoma tumor in her breast in January 1982, is it as likely as not that this constellation of symptoms represented the onset of her sarcoidosis during active duty? The examiner should present a discussion that includes a detailed supportive rationale and explanation of the opinion presented. A rationale for the requested opinion shall be provided. If the examiner cannot provide the opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. The examiner should use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50 percent); at least as likely as not" (meaning likelihood of at least 50 percent), or "less likely than not" or "unlikely" (meaning that there is a less than 50 percent likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 3. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claim of entitlement to service connection for sarcoidosis should be adjudicated on the merits following review of all relevant evidence associated with the claims file. If service connection remains denied, a supplemental statement of the case should be provided to the Veteran and her representing attorney. After the Veteran and her attorney have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).