Citation Nr: 1621240	
Decision Date: 05/25/16    Archive Date: 06/02/16

DOCKET NO.  08-36 063	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for sarcoidosis, to include as due to exposure to herbicides and as secondary to service-connected coronary artery disease.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

I. Cannaday, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Army from March 1969 to January 1971.  His awards and decorations include the Combat Infantryman Badge, and the Veteran's DD-214 indicates that he that he served as a light weapons infantryman in the Republic of Vietnam.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  That decision denied the Veteran's petition to reopen the claim of service connection for sarcoidosis.

A December 2011 Board decision denied the Veteran's appeal of the February 2008 rating decision.  He appealed that decision to the United States Court of Appeals for Veterans Claims (Court).  In June 2012, the Court granted a Joint Motion for Remand and remanded the case to the Board for action consistent with terms of the Joint Motion.  A November 2012 Board decision again denied the petition to reopen the claim of service connection for sarcoidosis.  The Veteran appealed that decision to the Court, which, in November 2013, issued a Memorandum Decision, vacating the Board's decision and remanding the case to the Board for action consistent with its decision.  Thereafter, an April 2014 Board decision reopened the claim of service connection for sarcoidosis, and remanded the case to the agency of original jurisdiction (AOJ) for additional evidentiary development and de novo review.  Subsequently, the Board remanded the case for further development in February 2015.  The case has since been returned to the Board for appellate review. 

This appeal was processed using the Veterans Benefits Management System (VBMS).  The Virtual VA electronic claims file contains documents that are either duplicative of the records in VBMS or irrelevant to the issue on appeal.


FINDING OF FACT

The Veteran's sarcoidosis did not manifest during active service or within one year of his separation from service, is not otherwise related to active service, and is not caused or aggravated by his service-connected coronary artery disease.


CONCLUSION OF LAW

The Veteran's sarcoidosis was not incurred in active service, may not be presumed to have been so incurred, and is not proximately due to, the result of, or aggravated by a service-connected disability.  38 U.S.C.A. §§ 1101, 1110, 1112, 1116 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).

Upon receipt of an application for a service-connection claim, VA must review the information and the evidence presented with the claim and 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.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).

In this case, the RO provided the Veteran with a notification letter in January 2008, prior to the initial decision on the claims for service connection.  Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant.  Moreover, the requirements with respect to the content, relating to the issue of direct service connection, of the notice were met in this case.  In the letter, the RO notified the Veteran of the evidence necessary to substantiate the claims and of the division of responsibilities in obtaining such evidence.  The letter also explained how disability ratings and effective dates are determined.

There is no evidence in the claims file that the RO provided the Veteran with pre-adjudication notice regarding his claim based on the theory of secondary service connection.  Nevertheless, when considering whether the lack of pre-adjudication notice is prejudicial to a veteran, the Supreme Court has held that the burden is on the party alleging prejudice to show that a notice error is harmful.  Shinseki v. Sanders, 556 U.S. 396, 406 (2009).  Here, the Board remanded the claim in February 2015 to address his representative's contention that the Veteran's sarcoidosis is secondary to his service-connected coronary artery disease and to obtain a VA medical opinion addressing that precise theory of entitlement.   

At no point since the Veteran filed his initial claim has he or his representative made any contentions regarding the lack of proper notice.  Under these circumstances, the Board finds that the lack of appropriate VCAA notice corresponding to the Veteran's claim of service connection for sarcoidosis secondary to coronary artery disease is not prejudicial to the Veteran.  See Vazquez-Flores v. Peake, 22 Vet.App. 37, 46 (2008) (noting that "the Court should consider whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim . . . served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial").  

In addition, the duty to assist the Veteran has also been satisfied in this case.  The Veteran's service treatment records as well as all identified and available post-service medical records are in the claims file.  The Veteran has not identified any available, outstanding records that are relevant to the claims decided herein. 

Further, the Veteran was afforded a VA examination in June 2014, and an addendum opinion was obtained in December 2015.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the December 2015 addendum opinion is adequate to decide the case because it is based on an accurate factual premise and a review of the claims file, including the Veteran's reported medical history, complaints, and lay statements submitted by the Veteran's wife.  The opinion also addresses the central medical issues and is supported by an adequate rationale.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion for the issue on appeal has been met.  38 C.F.R. § 3.159(c)(4).

As noted above, the case was remanded in February 2015 to obtain an addendum VA medical opinion regarding the etiology of the Veteran's current sarcoidosis.  VA obtained an addendum opinion in December 2015 that addressed the questions in the February 2015 remand.  Accordingly, the remand directives were ultimately accomplished and, as such, there has been substantial compliance with the prior remand instructions.  See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (requiring substantial compliance with a remand order).

For these reasons, the Board concludes that VA has fulfilled the duties to notify and assist the Veteran in this case.  Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. 

Law and analysis

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131.  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309.

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim.  38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Further, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied.  38 C.F.R. § 3.309(e).  Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(d)(6)(i).  Section 3.307(d)(6) also provides that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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 that service.  38 C.F.R. § 3.307(d)(6)(iii).  Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  Id.  

The diseases presumed to be associated with herbicide exposure include: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e). 

The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service.  38 C.F.R. § 3.307(a)(6)(ii). 

The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted.  See Notice, 67 Fed. Reg. 42600 -42608 (2002). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure.  See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange).

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the evidence of record weighs against a finding that the Veteran is entitled to service connection for sarcoidosis.

The Veteran has contended that his sarcoidosis is related to his military service, to include his exposure to herbicides therein and as secondary to his service-connected coronary artery disease.  

The Veteran has contended that his sarcoidosis began as a result of his service.  See June 2008 Notice of Disagreement; November 2009 Substantive Appeal.  Specifically, the Veteran has stated that he was in areas where Agent Orange was sprayed, that he slept in defoliated areas, and that many of the soldiers in his unit have the same lung condition and have suffered many health issues.  See January 2008 statement in support of claim; October 2014 correspondence.  
      
As noted above, the Veteran's awards and decorations include the Combat Infantryman Badge, and the Veteran's DD-214 indicates that he that he served as a light weapons infantryman in the Republic of Vietnam.  Therefore, based on the Veteran's in-country service in Vietnam, it is presumed that he was exposed to herbicides.  As such, the remaining question is whether the Veteran's current sarcoidosis is related to his herbicide exposure in service.

The Veteran's wife, his daughter, and his son provided statements in support of his claim.  The Veteran's wife stated that when he returned from Vietnam he had breathing problems and problems with his stomach.  His wife then indicated that the Veteran was in and out of the hospital.  See April 2011 statement in support of claim; June 2006 statement.  The Veteran's daughter stated that her father is suffering from many health issues, which seem to all be connected to Agent Orange.  See April 2011 statement in support of claim.  The Veteran's son indicated that the Veteran has had numerous health problems since serving in Vietnam.  See April 2011 statement in support of claim.  

However, the Veteran's service treatment records (STRs) do not document any complaints, treatment, or diagnosis of sarcoidosis.  Further, on clinical evaluation, at the Veteran's October 1968 pre-induction examination, the Veteran's lungs and chest were evaluated as normal.  Similarly, at his October 1968 report of medical history, the Veteran indicated that he has never had shortness of breath.  Further, on clinical evaluation, at his January 1971 separation examination, the Veteran's lungs were once again evaluated as normal.  There is no indication in the Veteran's STRs that he complained of sarcoidosis or any symptoms related to sarcoidosis.  Importantly, the Veteran did not indicate that he had trouble breathing while in service.

The post-service medical evidence shows that the Veteran was not diagnosed with sarcoidosis until December 2005.  See December 2005 VA treatment record.  There are no medical records indicating that the Veteran had any trouble breathing until over 30 years after service.  To the extent that the Veteran, his wife, his daughter, and his son have asserted that there were symptoms of sarcoidosis soon after service, the Board will address those contentions below. 

In addition to the lack of evidence showing that the Veteran's sarcoidosis manifested during active duty service or within close proximity thereto, the weight of the evidence of record does not link the current diagnosis to the Veteran's military service.

The Veteran was afforded a VA examination in January 2014.  The opinion from that examination was not adequate to decide the issue and so an addendum opinion was obtained in December 2015.  In the December 2015 addendum opinion, the examiner confirmed the sarcoidosis diagnosis.  However, the examiner opined that it was less likely than not that the disorder was incurred in or caused by the claimed in-service injury, event or illness, to include herbicide exposure.  In so finding, the examiner cited articles that indicate that the cause of sarcoidosis remains unknown.  The examiner specifically stated that, despite extensive medical investigation, the etiology of sarcoidosis remains unknown.  However, the examiner went on to state that there is no established presumptive or otherwise scientifically established association between Agent Orange and sarcoidosis.  Further, the examiner noted that the Veteran did not have any documented respiratory symptoms or conditions consistent with sarcoidosis prior to, during, or at his separation from active duty service.  She then opined, as stated above, that it is less likely than not that the Veteran's sarcoidosis was incurred in, or caused by exposure to Agent Orange while serving in Vietnam.  

The examiner also address the statements submitted by the Veteran's wife regarding the Veteran having breathing problems when he returned from Vietnam and that such problems increased in the ensuing years.  The examiner indicated that the longitudinal medical evidence does not support the above lay observation, as the Veteran had no diagnosis of or treatment for a chronic pulmonary condition until 2005.  The examiner further stated that, between the Veteran's separation from the military and 2004-2005 he had sought medical evaluation and treatment for chronic abdominal conditions.  She opined that it would have been assumed that respiratory symptoms would have been addressed by his treating providers and that he and his spouse would have been advised of specific positive findings.

The December 2015 examiner further opined that the Veteran's sarcoidosis was not caused or aggravated by his service-connected coronary artery disease.  In rendering the opinion, the examiner explained that, after a review of the medical literature, coronary artery disease is not a cause of sarcoidosis.  The examiner indicated that the opposite is true, and that sarcoidosis is found in the medical literature to adversely affect heart function.  The examiner then went on to cite online medical journals, which described the relationship between lung diseases and heart diseases.  The examiner stated that there is no pathophysiological relationship between the coronary arteries and their function with the initiation of "granulomatous reaction."  The examiner noted that the Veteran's sarcoidosis, which was diagnosed five years prior to his February 2010 cardiac catheterization revealing non obstructive coronary arteries disease, is less likely than not aggravated by his service connected coronary artery disease.  

The Board finds the December 2015 addendum opinion to have significant probative value.  The examiner reviewed the claims file, considered the Veteran's reported history and lay statements, cited to medical literature, and supported her conclusions with an adequate supporting rationale.  She also addressed the Veteran's contentions in this case. 

The Board has considered the Veteran's lay statements, as well as those of his wife, son, and daughter.  While there is no medical record showing that the Veteran had breathing problems shortly after he left service, the Veteran, his wife, son, and daughter have all consistently stated that the Veteran suffered health problems, including difficulty breathing, since service.  The Veteran, his wife, his son, and his daughter are certainly competent to report observable symptoms, such as the Veteran having breathing problem since he returned from Vietnam.  Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).   Additionally, the Board finds that their statements regarding the onset of the Veteran's difficulty breathing are all credible.  Although the Veteran, his wife, his son, and daughter are competent to state he had breathing problems and other health problems after service, they are not competent to provide an opinion as to whether such symptoms are attributable to exposure to Agent Orange, as it is a complex medical determination based upon internal medical processes and not capable of lay observation.  Moreover, they are not competent to provide an opinion that such breathing problems are signs of sarcoidosis.  The Veteran has not contended, and the evidence does not show, that they have the medical expertise to provide such opinions.  See Jandreau, 492 F.3d at 1377; Layno, 6 Vet. App. at 465.

Moreover, even if the lay statements of record were competent to determine that such symptoms were early manifestations of sarcoidosis, the Board finds that the specific, reasoned opinion of the December 2015 VA examiner is of greater probative weight than the lay assertions in this regard.  The examiner reviewed the claims file, the Veteran's own reported history, the lay statements of the Veteran and his wife, and pertinent medical literature.  She also has training, knowledge, and expertise on which she relied to form his opinion.  In addition, she specifically addressed the Veteran and his wife's lay statements and contentions and provided an adequate rationale for the conclusion reached.  The Board acknowledges that the examiner did not specifically address the lay statements of the Veteran's son and daughter.  However, as stated above, the examiner did address the Veteran and his wife's contentions, which are similar to the statements made by the Veteran's son and daughter.  As such, the Board finds that the examiner not specifically mentioning the statements made by the Veteran's son and daughter does not diminish the probative value of the examiner's opinion.  

Finally, the Board notes that, in June 2008, the Veteran submitted a Board decision where a different Veteran was granted service connection for sarcoidosis based on herbicide exposure.  However, the Board notes that this prior Board decision is not binding with respect to the matter currently on appeal and was based on a different evidentiary record.  See 38 C.F.R. § 20.1303 (noting that Board decisions are non-precedential).  

Based on the foregoing, the Board finds that the weight of the evidence is against the Veteran's claim.  As such, the benefit-of-the-doubt rule does not apply, and the claim is denied.  Gilbert, 1 Vet. App. 49, 53.


ORDER

Service connection for sarcoidosis, to include as due to exposure to herbicides and as secondary to service-connected coronary artery disease, is denied.    

____________________________________________
ANTHONY C. SCIRÉ, JR.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs