Citation Nr: 18160006 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 17-05 364 DATE: December 20, 2018 ORDER Entitlement to service connection for inflammatory arthritis, as secondary to service-connected hepatitis B, is denied. Entitlement to service connection for lupus, as secondary to service-connected hepatitis B, is denied. Entitlement to service connection for Sjogren syndrome, as secondary to service-connected hepatitis B, is denied. FINDINGS OF FACT 1. The Veteran does not have inflammatory arthritis. 2. The Veteran does not have lupus. 3. The Veteran does not have Sjogren syndrome. CONCLUSIONS OF LAW 1. The criteria for service connection, to include on a secondary basis, for inflammatory arthritis have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018). 2. The criteria for service connection, to include on a secondary basis, for lupus have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). 3. The criteria for service connection, to include on a secondary basis, for Sjogren syndrome have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1988 to November 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2015 and September 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. As an initial matter, generally, a notice of disagreement (NOD) must be filed within one year from the date that the RO mails notice of the determination. The date of mailing of the notification is presumed to be the same as the date of the letter. 38 C.F.R. § 20.302(a). Effective March 24, 2015, VA only accepts issues listed on a timely-filed NOD via VA Form 21-0958, in cases where the AOJ provides the form for the purpose of initiating an appeal. 38 C.F.R. § 20.201 (2018). The Veteran was notified of her October 2015 rating decision on October 27, 2015, denying her claims for entitlement to service connection for inflammatory arthritis, lupus, and Sjogren syndrome, and in response, she filed a statement, in July 2016, for reconsideration via VA Form 21-4138 regarding her autoimmune disorders secondary to her service-connected hepatitis B. In September 2016, the RO issued another rating decision continuing the denial of the Veteran’s claim of entitlement to service connection for inflammatory arthritis. On October 31, 2016, VA received a NOD regarding the issue related to inflammatory arthritis, and a separate NOD regarding the issues related to lupus and Sjogren syndrome. As such, the NOD filed regarding the issues related to lupus and Sjogren syndrome was not timely because it was not received on the correct form within one-year timeframe. However, it appears that the RO construed the July 2016 statement for reconsideration from the Veteran as a NOD with the October 2015 rating decision because the statement of the case (SOC), which was issued in November 2016, considered all three issues. Subsequently, the Veteran filed a timely VA Form 9, appealing all of the issues listed on the SOC. Therefore, the Board will take jurisdiction over the claims of entitlement to service connection for lupus and Sjogren syndrome. Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The record reflects that VA’s duty to notify was satisfied by various correspondences. There is no indication in this record of a failure to notify. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2018); see also Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Regarding the duty to assist, the Veteran’s service treatment records (STRs) and post-service medical treatment records are associated with the claims file. Additionally, the Veteran was afforded a VA examination for inflammatory arthritis in August 2016; she has not had VA examinations for lupus or Sjogren syndrome. While the Board acknowledges the Veteran’s contention that VA has not satisfied the duty to assist in developing the claim, an examination is not required every time a claim is filed. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). A VA examination is only required when necessary to decide a claim. The Board finds that examinations for lupus and Sjogren syndrome are not necessary because, as discussed below, the record does not establish that the Veteran has either of these disabilities. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). Additionally, the Veteran contends that the VA examination she received regarding inflammatory arthritis was inadequate because the examiner was not a rheumatologist. The Board notes that VA satisfies its duty to assist when it provides a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). Further, the Board may assume a VA medical examiner is competent as part of the presumption of regularity that attaches to the actions of public officials. Id.; Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009). There is nothing in the opinion to suggest that the examiner was not qualified through lack of education, training, or experience to render an opinion regarding the Veteran’s service connection issue on appeal. See Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011). As noted above, an examiner need only be “qualified through education, training, or experience to offer medical diagnoses, statements, or opinions,” and a specific specialist is not necessarily required. See Cox, 20 Vet. App. at 569. Accordingly, the Board finds the August 2016 VA examiner qualified and competent to provide the requested examination report. Additionally, after a review of the examination report the Board finds it is adequate to adjudicate the issue on appeal. Therefore, VA has fulfilled its obligation to assist the Veteran in developing the claim on appeal. Service Connection Establishing service connection generally requires (1) evidence of 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. Shedden v. Principi, 281 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis. In this instance, the evidence must demonstrate an etiological relationship between a service-connected disability or disabilities on the one hand and the condition said to be proximately due to the service-connected disability or disabilities on the other. 38 C.F.R. § 3.310(a); Wallin v. West, 11 Vet. App. 509 (1998). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person’s observations would be competent. Clyburn v. West, 12 Vet. App. 296 (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. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488 (1997). The Board must assess the credibility and weight of all the 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. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Autoimmune disorders The Veteran contends that she is entitled to service connection for inflammatory arthritis, lupus, and Sjogren syndrome as secondary to her service-connected hepatitis B. The Veteran indicated that she experienced disabling joint pain, swelling, and fatigue, affecting her ability to continue working. The Veteran does not contend, nor does the record reflect, that any of these disabilities were present during active service. Indeed, the Veteran’s STRs are silent for any complaints, treatment, or diagnosis of inflammatory arthritis, lupus, or Sjogren syndrome. A letter dated in July 2015 from a private physician indicates that the Veteran had inflammatory arthritis and may have Sjogren syndrome, lupus, or lupus-like illness. The Veteran provided a nexus opinion from a private physician, dated in June 2016. The provider indicated that the Veteran was followed for presumed inflammatory arthritis and opined that her signs and symptoms were mostly likely due to her ongoing hepatitis B virus. The Veteran was afforded a VA examination in August 2016 for her inflammatory arthritis. After reviewing the Veteran’s claims file and conducting an in-person examination, the examiner noted that the Veteran did not have inflammatory arthritis. The examiner noted that there was no formal diagnosis or objective evidence to diagnose an inflammatory arthritis condition. Moreover, the examination indicates that the Veteran denied a formal diagnosis of inflammatory arthritis and did not report taking any medications at that time. An April 2017 treatment record indicates that the Veteran suffered from arthritis and bone pain. The record notes that several of her providers felt that her symptoms were attributable to her hepatitis B. The record further indicates that the Veteran had started medication that would help control her arthritis pain if it was related to the hepatitis B virus, but “it seems this is not the case.” An August 2017 record notes that there was no radiographic evidence of inflammatory arthritis. Regarding the Veteran’s claim for lupus, the medical treatment records consistently note that it was “possible” that the Veteran had lupus; however, a letter dated April 2018 from her physician notes that there was no evidence of lupus erythrocytosis. The medical treatment records are silent for any complaints, treatment, or diagnosis related to Sjogren syndrome. Turning first to inflammatory arthritis, the Board finds the VA examination to be the most probative evidence of record because it was based on a review of the Veteran’s claims file, which included her medical records, and an in-person examination. The medical treatment records on file are inconsistent as to whether or not she has inflammatory arthritis and therefore, are of minimal probative value. Moreover, at her August 2016 VA examination, the Veteran acknowledged that she had not received a formal diagnosis of inflammatory arthritis. Based on the foregoing, the Board finds that the Veteran does not have a current disability of inflammatory arthritis. Turning next to lupus and Sjogren syndrome, the Board finds that the record does not support a finding that the Veteran has either of these disabilities. The records indicate that, at most, it is “possible” that the Veteran has lupus, and there is no mention, other than the July 2015 letter, of Sjogren syndrome, which also notes that it is merely “possible” that the Veteran had Sjogren syndrome. Accordingly, the evidence of record does not reflect that the Veteran has lupus or Sjogren syndrome. The Board acknowledges the symptoms that the Veteran has experienced and recognizes that her symptoms could be related to her service-connected hepatitis B. However, symptoms, such as joint pain, are not a “disability” for VA purposes. Evidence of a current disability is a fundamental requirement for a grant of service connection. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As the evidence of record does not demonstrate that the Veteran does in fact have the claimed disabilities, the first element of service connection has not been met for any of the claims on appeal, and no further analysis is necessary. Moreover, the Board recognizes that the Veteran is a phlebotomist and as such, has some medical experience. That level of training, education and experience, however, is limited to that of a technician, rather than a clinician trained to diagnose or determine the etiology of disorders. The Veteran is not shown to possess the medical training necessary to establish a current disability or render competent opinions about the etiology of a disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). As such, the Board finds that the preponderance of the evidence is against the claims for service connection for inflammatory arthritis, lupus, and Sjogren syndrome. Accordingly, the benefit-of-the-doubt rule does not apply, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert, 1 Vet. App. at 55. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Hite, Associate Counsel