Citation Nr: 1808372	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  12-21 735	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for systemic lupus erythematosus (lupus).


REPRESENTATION

Appellant represented by:	Kenneth H. Dojaquez, Attorney


WITNESSES AT HEARING ON APPEAL

The Veteran and B.A., Witness


ATTORNEY FOR THE BOARD

A. Boal, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 2002 to September 2006.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  

In November 2017 the Veteran testified at a videoconference hearing at VA RO in Columbia, South Carolina, before the undersigned Veterans Law Judge (VLJ), and a transcript has been associated with the claims file.


FINDINGS OF FACT

1. The Veteran has a current diagnosis for lupus.

2. The Veteran first experienced symptoms of lupus during active duty service.


CONCLUSION OF LAW

The criteria for service connection for lupus have been met.  38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran is seeking service connection for lupus. 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.§§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017).  For the showing of a 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.  Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b) (2017).  Service connection may also 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) (2017).  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017).

Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, including systemic lupus erythematosus, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  See 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017).

In this case, lupus is listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) potentially applies.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  For the showing of a "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.  With chronic diseases in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection.  38 C.F.R. § 3.303(b).  

Turning to the facts of the present case, the Veteran was diagnosed with lupus in 2008 after she separated from active duty service.  The Veteran contends that she first experienced symptoms of lupus during service.

The Veteran attended a VA examination in May 2011.  The VA examiner noted that the Veteran was not diagnosed with lupus until July 2008, and that her symptoms did not begin until April 2008, after she separated from active duty service.

The Veteran testified at the hearing in this matter that she first experienced symptoms of lupus during service.  The symptoms included chronic diarrhea, nausea, fevers, headaches, vomiting, fatigue, chest pains, shortness of breath, and hair loss.  The Veteran reported that the symptoms have been continuous to the present day.  The Board finds the Veteran's report of symptoms to be credible.  Furthermore, the Veteran is competent to report on the onset and continuity of her current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). 

The Veteran's service treatment records do not reflect a specific diagnosis or treatment of lupus, but they do reflect that she repeatedly sought treatment for shortness of breath, dizziness, hair loss, fever, pain throughout her body, chest pains, and hair loss, among other symptoms. 

Also, the Veteran submitted post-service private medical records confirming her diagnosis and treatment for lupus.  The Veteran's primary care doctor, who has been treating the Veteran for several years, submitted a written statement in May 2013 opining that the symptoms she reported and sought treatment for during service were symptoms of the onset of the Veteran's currently diagnosed lupus.

The Board therefore finds that there is adequate evidence showing that the Veteran had disease symptoms that manifested in service and a competent and probative medical opinion found that the Veteran's symptoms are related to her current diagnosis. 

The Board does acknowledge that the May 2011 VA examination opinion weighs against the claim.  However, 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 claimant.  38 U.S.C.A. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). 

The Board therefore finds that the evidence supports the Veteran's contention that she first experienced symptoms of lupus during active service and that those symptoms are continuous in nature. Hence, affording the Veteran the benefit of the doubt, entitlement to service connection for systemic lupus erythematosus is warranted.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for systemic lupus erythematosus is granted.



____________________________________________
H. SEESEL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs