Citation Nr: 1415570	
Decision Date: 04/09/14    Archive Date: 04/15/14

DOCKET NO.  11-07 537	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to service connection for sarcoidosis. 

2.  Entitlement to service connection for residuals of an eye injury, to include glaucoma.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran




ATTORNEY FOR THE BOARD

J. Honan, Associate Counsel


INTRODUCTION

The Veteran had active service from September 1977 to May 1984, from January 1994 to October 1994, and from March 1998 to June 1998.  He also completed additional Reserve service.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. 

In April 2012, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

The scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.  Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009); Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009).  Accordingly, the Board has restyled the claim for service connection for glaucoma as shown on the title page.

The issue of entitlement to service connection for residuals of an eye injury, to include glaucoma, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The most probative evidence shows that sarcoidosis onset during active service. 


CONCLUSION OF LAW

The criteria for service connection for sarcoidosis have been met.  38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

In this decision, the Board grants service connection for sarcoidosis.  As this represents a complete grant of the benefit sought on appeal, and is the only issue decided here, no discussion of VA's duty to notify and assist is necessary.

Service Connection - Laws and Regulations

In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110.  "Service connection" means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service in the Armed Forces, or if preexisting such service, was aggravated therein.

Establishing direct service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including sarcoidosis, to a compensable degree within one year from the date of separation from active 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, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309.

Under 38 C.F.R. § 3.303(d), 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.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection.

VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection.  38 U.S.C.A. § 1154(a).  

Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible.  Competency is a question of fact, which is to be addressed by the Board.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).

When the evidence is admissible, the Board must then determine whether the evidence is credible.  "Credible evidence" is that which is plausible or capable of being believed.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). 

If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, whether the evidence tends to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  If the evidence is not credible, the evidence has no probative value. 

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 Veteran.  38 U.S.C.A. § 5107(b).

Sarcoidosis

The Veteran's service treatment records do not contain a formal diagnosis of sarcoidosis.  According to a service treatment record from July 1984, a chest X-ray described as "borderline" indicated an enlarged heart.  This record also included a notation of recent viral illness.

Private treatment records reflect that sarcoidosis was diagnosed in June 1985, one year and one month after service.

In a May 2010 letter, the Veteran's former cardiologist, Dr. F.H., who originally treated the Veteran in 1984, opined that sarcoidosis began in service.  He explained that although a July 1984 X-ray was ultimately evaluated as normal, the disease in its early stage could have easily been missed by plain X-ray. 

In December 2010, the Veteran underwent a VA respiratory disorders examination.  The examiner found that the diagnosis of sarcoidosis was first documented in June 1985, after active service.  The examiner noted that the impression by the Veteran's doctor in June 1985 was sarcoidosis stage I, asymptomatic.  The examiner found no evidence of current sarcoidosis.  He noted no current symptoms, but also stated that the Veteran reported cramping in his hands.  The examiner also noted that the Veteran reported no history of smoking.  The examiner determined that there was a history of asymptomatic stage I sarcoidosis in 1985 that had resolved, with no evidence of active sarcoidosis.   

During the Veteran's April 2012 Board hearing, he reported experiencing chest pains and shortness of breath in service.  When he underwent periodic chest X-rays in service, he was told they were abnormal.  The Veteran also reported that he had first been treated for his condition by Dr. F.H., his cardiologist, and by Dr. P.J., a pulmonologist, now deceased.  The Veteran stated that Dr. F.H. monitored his sarcoidosis for approximately 16 years, after which time the Veteran lost his insurance and sought treatment through VA.  He testified that, essentially, his condition was being monitored, but not treated with medication.  He reported a current symptom of hand cramping. 

Under Diagnostic Code 6846 of VA's Schedule for Rating Disabilities, sarcoidosis is not compensable (i.e. assigned a rating higher than 0 percent) unless there is pulmonary involvement with persistent symptoms requiring chronic low dose (maintenance) or intermittent corticosteroids.  Such finding would warrant a 30 percent rating.  See 38 C.F.R. § 4.97, DC 6846. 

Given that there is no evidence of record indicating that the Veteran has been treated with corticosteroids for sarcoidosis, and given that he was diagnosed as asymptomatic in June 1985, the presumption of service connection for chronic diseases listed under 38 C.F.R. § 3.309(a) does not apply, because the Veteran's condition did not manifest to a compensable degree within a year after separation from active service.

However, even where presumptive service connection is inapplicable, the Board must still determine whether the evidence shows direct service incurrence of the disability.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).      

The Veteran's former cardiologist has opined that his sarcoidosis had its onset in 1984, during active service.  This medical opinion carries significant probative weight, as it comes from the cardiologist who first treated the Veteran for his symptoms in 1984, and who first referred him to a pulmonologist for further testing.  This cardiologist subsequently monitored the Veteran's condition for 16 years. 

Although the VA examiner found no active sarcoidosis and no documentation of a diagnosis until one year and one month after service, the cardiologist who treated the Veteran beginning in 1984 is in a better position to provide an opinion as to when the condition onset.  Moreover, the cardiologist's May 2010 letter implies that the Veteran's condition, even if asymptomatic, is nonetheless ongoing.  

Given the Veteran's competent and credible report of symptoms during service, which were confirmed by a later diagnosis made one year and one month after service, combined with the cardiologist's opinion of the condition onset in service, the most probative evidence demonstrates that sarcoidosis had its onset in service.  Therefore, service connection is warranted.  


ORDER

Service connection for sarcoidosis is granted. 


REMAND

The Veteran has never been afforded a VA examination to address his service connection claim for residuals of an eye injury, to include glaucoma.

The record reflects a current diagnosis of glaucoma, as well as an in-service left eye injury requiring surgery in or around November 1978.  In May 2012, the Veteran's VA optometrist submitted a letter stating that the Veteran's eye injury in service left a scar and probable damage to at least the eyelid.  He also stated that trauma to the eye has been linked to the development of glaucoma.  He opined that the Veteran's lid twitch of the left eye is probably due to his injury history.  

Given the existence of a current disability, a documented in-service injury, and an optometrist's letter indicating a possible medical nexus, the Veteran must be afforded a VA examination under the duty to assist.  38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

Accordingly, the case is REMANDED for the following action:

1.  Obtain any outstanding, pertinent VA treatment records and associate them with the claims file. 

2.  Then, schedule the Veteran for a VA examination with an appropriate professional to address the claim for service connection for residuals of an eye injury, to include glaucoma. 

The entire claims file must be made available to the examiner for review. 

The examiner should provide an opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran's glaucoma was caused by an in-service eye injury.  

The examiner should also determine whether there are any other current residuals of an eye injury, and if so, provide an opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that such residuals are related to service. 

The examination report should include a complete explanation for all opinions expressed. 

If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 

3.  After the above development is completed, readjudicate the claim.  If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board.   

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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



______________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs