Citation Nr: A19001564 Decision Date: 09/26/19 Archive Date: 09/25/19 DOCKET NO. 190128-1861 DATE: September 26, 2019 ORDER Readjudication of the claim for service connection for lupus/optic neuritis is warranted. Service connection for optic neuritis, to include neuromyelitis optica, claimed as lupus, as secondary to the service-connected left knee degenerative joint disease, is granted. FINDINGS OF FACT 1. The new evidence received after the final September 2015 denial is relevant to the issue of entitlement to service connection for lupus. 2. Resolving all reasonable doubt in favor of the Veteran, her lupus is secondary to her service-connected left knee degenerative joint disease. CONCLUSIONS OF LAW 1. The criteria for readjudicating the claim for service connection for lupus have been met. 84 Fed. Reg. 138, 169 (Jan. 18, 2019) (to be codified). 2. The criteria for secondary service connection for lupus have been met. 38 U.S.C. § 1131 (West 2012); 38 C.F.R. § 3.310 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2007 to March 2008; and from August 2009 to August 2010. The Board notes that the rating decision on appeal was issued in March 2019. In April 2019, the Veteran elected the modernized review system which offers veterans a simplified appeals whereby they select different appeals “lanes” to fit their needs. 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2(d)). The Veteran selected the “evidence submission” lane when she opted in to the Appeals Modernization Act (AMA) review system by submitting a Rapid Appeals Modernization Program (RAMP) election form. She also submitted additional evidence within 90 days of his Notice of Disagreement. Accordingly, the Board will consider the evidence of record at the time of the March 2019 RAMP rating decision, and evidence submitted within 90 days of the April 2019 election of the Evidence Submission option. The new and material evidence issue regarding service connection for lupus has been recharacterized to reflect the applicable evidentiary standard, “new and relevant” evidence. 84 Fed. Reg. 138, 172, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. §§ 3.2501 (a)(1), 19.2). The new and material evidence issue regarding lupus has been recharacterized because evidence was received within one year of the December 2018 legacy rating decision, but VA did not determine whether it was new and material. 38 C.F.R. § 3.156(b) (2018). Therefore, the service connection claim was still pending when the Veteran opted into AMA. The AOJ considered the merits of the service connection claim in its March 2019 AMA rating decision. 38 C.F.R. § 7.104(a) (2018). In the March 2019 AMA rating decision, the agency of original jurisdiction (AOJ) found that new and relevant evidence was submitted to warrant readjudicating the claim for service connection for lupus. The Board is bound by this favorable finding. 84 Fed. Reg. 138, 167 (Jan. 18, 2019) (to be codified as 38 C.F.R. § 3.104(c)). New and Relevant Evidence to Readjudicate Lupus Service Connection Claim VA will readjudicate a claim if new and relevant evidenced is presented or secured. 84 Fed. Reg. 138, 169 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 3.156 (d)). “Relevant evidence” is evidence that tends to prove or disprove a matter in issue. 84 Fed. Reg. 138, 172 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 3.2501(a)(1)). In the October 2013 and September 2015 rating decisions, the AOJ previously denied the claims for optic neuritis and lupus. After these final rating decisions, in March 2017, the Veteran filed another claim for neuro myelitis optica, claimed as lupus, which was essentially a claim to reopen, after the previous denial of the optic neuritis and lupus claims. Thus, the Board shall now determine whether the Veteran has submitted evidence after the prior, final, September 2015 rating decision which denied the lupus claim in the legacy system, and if so, it shall also determine whether the evidence submitted is new and relevant to her claim. A review of the Veteran’s claims file indicates that she underwent a February 2019 VA examination, in which she was diagnosed with neuromyelitis optica. Additionally, she submitted a May 2019 private medical nexus opinion, and clearly both pieces of evidence were submitted after the prior, final September 2015 legacy rating decision. Since these pieces of evidence were not of record and may prove or disprove the nexus element of the claim for service connection for lupus, the Board finds that new and relevant has been received since the prior, final September 2015 rating decision. Accordingly, readjudication of this lupus claim is warranted. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110 (West 2012); 38 C.F.R. § 3.303 (2018). That determination requires a finding of current disability that is related to an injury or disease in service. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2018). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313(Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Additionally, certain chronic diseases, including and not limited to, arthritis (or degenerative joint disease), will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Alternatively, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2018). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2018); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran asserts that her lupus and/or neuro myelitis began in service, or in the alternative, manifested to a compensable degree within one year of separation form service, and thus, it is presumptively service-connected. In a December 2018 email correspondence, the Veteran reported that in October 2010, less than one year from leaving service, she was seen by a private rheumatologist regarding a history of joint pain, among other issues. She further indicates that these 2010 records demonstrated a result of positive anti-nuclear antibodies (ANA), which lead to a suspected diagnosis of rheumatoid arthritis, although the rheumatoid factor was negative. She further asserts that VA rheumatology records from 2012 showed a diagnosis of systemic lupus was suspected on the basis of the positive ANA test from 2010. Additionally, she contends that ophthalmology treatment records also list lupus/optic neuritis as co-existing conditions requiring the same treatment, further evidencing that the Veteran has suffered from myelitis since at least 2010. Although a September 2010 private treatment record documents symptoms of joint pain, joint swelling in the knee, and a positive ANA result, no actual diagnosis of lupus was noted in this treatment record. Additionally, in this September 2010 medical treatment record, a review of the Veteran’s systems reflected symptoms of joint pain; lightheadedness or dizziness; and blurry vision, among many other symptoms and manifestations. Some treatment records reflect a diagnosis of lupus. For example, a March 2013 treatment note reflects that the Veteran complained of slight pain behind the right eye, and additionally, she was assessed with a diagnosis of lupus. Additionally, a July 2013 eye note reflects that the Veteran has lupus, neuromyelitis optic, with a history of neuritis on the left eye (OS), flowed by otic neuritis on the right eye. Based on this treatment note, the Veteran was also prescribed with prednisone, which is a medication that is commonly prescribed for lupus. Also, for example, a July 2015 hospital admission note reflects an “admission diagnosis” of “polyneuropathy in disseminated erythematosus.” At the same time, other treatment records either indicate that the Veteran has “possible lupus disease”, and/or that a lupus diagnosis is questionable. For example, an April 2013 addendum note indicated that the Veteran has “possible lupus/left eye optic neuritis”, but also reflects a positive ANA result. See also May 2015 H & P Note; see too January 2018 Eye Note. In a May 2013 disability benefits questionnaire (DBQ), the VA examiner, Dr. S.S., diagnosed the Veteran with optic neuritis in both eyes, secondary to neuromyelitis optica. However, no etiological opinion was provided. After the Veteran underwent a VA examination for eye conditions in February 2019, a VA examiner opined that her condition was less likely than not (less than 50 percent probability), incurred in or caused by an in-service injury, event, or illness. As the rationale for this opinion, the VA examiner noted, in pertinent part, that the Veteran’s records noted joint pain and back pain, and that ANA was positive. He further noted that records from October 2010 noted an assessment of systemic lupus erythematosus, but that there was no definitive diagnosis, and that the Veteran noted complaints of blurry vision. However, he did not note or reference any other findings and diagnoses of lupus in other treatment records, as indicated above, despite referencing and discussing other treatment records that have addressed and diagnosed other eye disabilities. He also explained that the Veteran endorsed the onset of left eye pain and blurred vision in 2013, and that when she went to the St. Davis Hospital emergency room in Austin, this turned out to be the earliest onset of her neurological disease; there is no support in the evidence reviewed for a diagnosis of neuromyelitis optica or optic neuritis prior to February 2013; and that the Veteran has a current diagnosis of optic atrophy of the right eye, which is secondary to neuromyelitis optica. In support of her claim, however, the Veteran has submitted a private medical opinion from Dr. M.R. In this detailed May 2019 medical opinion, Dr. M.R. explained that the Veteran is currently service-connected for left knee degenerative joint disease, and for tinnitus. She noted that the claims file documented serum ANA positive, with inflammatory polyarthritis, including the knees, without organ system involvement, Sjogren antibody SSB positive, and further, noted that in September 2010, less than two months after leaving active duty military service, the Veteran presented to a private rheumatologist’s office, Dr. A.B., with complaints of back pain, joint pain, and blurry vision. She noted that this examination revealed knee swelling and bilateral tenderness to palpation of the joint, and that Dr. A.B. diagnosed the Veteran with an inflammatory disease. She noted, among other pertinent observations, that a diagnosis of lupus was suspected at the time, with no evidence of organ damage. She also indicated that a September 2010 lab revealed a positive ANA result. Additionally, she explained that the Veteran presented with visual loss in the left eye first, and subsequently in the right eye in early 2013, with an initial working diagnosis of optic neuritis. Dr. M.R. explained that by March 2016, the Veteran manifested neurologic signs and symptoms, including severe neuropathic pain, sensory loss of thoracic dermatomes, falls and unsteady gait, and that at that point, VA diagnosed the Veteran with neuromyelitis optica spectrum disorder (NMOSD). Further, she noted that the Veteran has avascular necrosis (AVN) of the bilateral hip, and that the Veteran’s hip AVN is acknowledged in VA records as causal long-term treatment with high dose of steroids for immunosuppression, and that further, X-rays done in March 2016 document bilateral early AVN of the hip, and although orthopedics consultation opined that she was not a candidate for surgery at the time, the Veteran requires the use of cane, and sometimes, a rollator walker, as a result of her bilateral hip AVN. Dr. M.R. further explained that as the Veteran had documented inflammatory polyarthritis in September 2010, which was diagnosed by a rheumatologist, in retrospect, this was a manifestation of what was later diagnosed as NMOSD. She then explained, while citing to some medical literature, that multiple peer-reviewed publications document a casual association in clinical and case-controlled studies between auto-immune spectrum disorders, specifically non-organ system involvement lusus/SLE and NMOSD; and that the Veteran’s AVN bilateral hip, with high-dose steroids, is due to her long-term treatment for NMOSD and its various clinical manifestations, including inflammatory arthralgias. On these bases, Dr. M.R. opined the Veteran’s NMOSD is related to her ANA positive inflammatory arthritis, which was diagnosed within two months of discharge from her active duty military service, including her left knee arthritis, which was diagnosed while she was still on active duty, and is currently service-connected. (Continued on the next page)   The Board finds that this May 2019 medical opinion is the more probative medical opinion, as it addresses and discusses the Veteran’s medical history, and it clearly explains the correlation between NMOSD and her service-connected left knee arthritis, as well as the effects of the Veteran’s disabilities, which is further supported by her application of medical literature to establish the basis of her opinion. Nonetheless, by considering the overall evidence, the Board finds that the evidence is in at least relative equipoise, and that in resolving all reasonable doubt in favor of the Veteran, her optic neuritis, to include neuromyelitis optica, which is claimed as lupus, is secondary to the Veteran’s service-connected left knee degenerative arthritis. Therefore, service connection for neuromyelitis optica, claimed as lupus, is granted. Matthew Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Vanessa-Nola Pratt, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.