Citation Nr: 20002785 Decision Date: 01/13/20 Archive Date: 01/13/20 DOCKET NO. 11-13 530 DATE: January 13, 2020 ORDER Entitlement to service connection for sickle cell anemia is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran’s current sickle cell trait is a congenital or hereditary defect and the Veteran is not shown to have current disability that is superimposed on the sickle cell trait and was incurred during active service. CONCLUSION OF LAW The criteria for service connection for sickle cell anemia have not been met. 38 U.S.C. §§ 1111, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(b) (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1976 to September 1982, from September 1982 to June 1986, and from June 1986 to September 1996. This case comes to the Board of Veterans’ Appeals (Board) on appeal from December 2008 and February 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO), in St. Petersburg, FL. The claim of entitlement to service connection for sickle cell anemia was previously before the Board in August 2018, when it was remanded for additional evidentiary development. In compliance with the remand directives, a new VA examination was conducted. The directives have been substantially complied with, and the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for sickle cell anemia Service connection may be granted for a disability resulting from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 382 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease or injury diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 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, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by evidence to the contrary. 38 C.F.R. §§ 3.307, 3.309. Alternatively, for the showing of chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. §§ 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. A Veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived or experienced, were directly through the senses. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, at 469-71 (1994). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus. However, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so; i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify.”). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. at 498 (Fed Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran asserts his sickle cell anemia is related to his military service. See May 2011 Form 9. Specifically, the Veteran contends he was diagnosed with sickle cell anemia during service in March 1994. Id. The evidence establishes that the Veteran has a current sickle cell trait diagnosis. A March 2019 VA examination report contains a diagnosis of sickle cell trait. See March 2019 VA examination. Regarding whether there was in-service event or injury, a review of the Veteran’s service treatment records (STRs) shows a diagnosis of sickle cell trait in February 1996. See February 1996 STR. In September 2015, the Veteran was afforded a VA examination to determine the etiology and nature of his sickle cell anemia. The VA examiner noted the Veteran’s positive sickle cell test. However, the VA examiner noted that the Veteran underwent hemoglobin electrophoresis for further evaluation which showed no objective finding of sickle cell anemia. The VA examiner reported that sickle cell trait is generally regarded as a benign condition and people with sickle cell trait do not have any of the symptoms of sickle cell trait. The Veteran was diagnosed with iron deficiency anemia and the VA examiner opined that the condition was less likely than not incurred in or caused by an in-service injury, event, or illness. A February 2018 private medical opinion reported that the Veteran’s previous hemoglobin electrophoresis results were consistent with sickle cell trait and alpha thalassemia trait and/or iron deficiency. The private physician diagnosed the Veteran with sickle alpha thalassemia disease which causes billary tract disease. The private physician opined that the Veteran’s sickle-alpha thalassemia disease is as likely as not to have a causative link to his established billary tract disease/gallstones. In accordance with the August 2018 Board remand, the Veteran was afforded another VA examination in March 2019 to reconcile the September 2015 VA examination and February 2018 private medical opinion on the etiology and nature of the Veteran’s sickle cell trait. The VA examiner reviewed the Veteran’s STRs, VA treatment records, the previous VA examinations, the February 2018 private treatment opinion, and Veteran submitted articles. The VA examiner noted a positive sickle cell test but reported no definitive diagnosis of sickle cell anemia. The VA examiner reported that the Veteran does not have sickle cell anemia but rather sickle cell trait with both normal and sickle genes. Sickle cell trait is a “defect;” a condition not considered capable of improving or deteriorating. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection for sickle cell anemia is not warranted. Sickle cell anemia is a hereditary-determined hemolytic anemia characterized by sickle-shaped erythrocytes in the blood. See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY at 74 (28th ed. 1994). The sickle cell trait is the condition, usually asymptomatic, caused by heterozygosity for hemoglobin S. See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY at 1934 (30th ed. 2003). VA regulations note that sickle cell trait alone, without a history of directly attributable pathological findings, is not a ratable disability. 38 C.F.R. § 4.117, Diagnostic Code 7714. As such, it is a congenital defect and the presumption of soundness at service entrance is automatically rebutted. See 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304 (b) (2017). Congenital and developmental defects are not ‘diseases or injuries’ within the meaning of applicable legislation for VA disability compensation purposes. 38 C.F.R. §§ 3.303 (c), 4.9. A defect considered by medical authorities to be of congenital origin must by its very nature have preexisted a claimant’s military service). See VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303 (c), 3.306. Nonetheless, service connection may be warranted for a defect resulting from a superimposed injury or disease occurring during active service. VAOPGCPREC 82-90 (July 18, 1990). Here, the Veteran has been diagnosed with sickle cell trait. See March 2019 VA examination. Post-service treatment records are silent for any complaints or treatments of a sickle cell crisis or anemia. The Veteran has not presented any medical or lay evidence that he has a history of sickle cell crisis or anemia. Upon review of the evidence of record, the Board finds that the sickle cell trait is a congenital defect and was not subject to a superimposed disease or injury in service. STRs reflect that the Veteran was discovered to have the sickle cell trait. The record shows that the Veteran has not been treated for a sickle cell crisis (either during service or after service). See March 2019 VA examination. Although the Veteran may believe that the sickle cell trait incepted or was aggravated during service, due to the nature of this condition, an evaluation of whether the pathology is inherited and worsens is better explained by a medical professional as it is a complex assessment. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). While the Veteran has submitted a private medical opinion reporting a diagnosis of sickle-alpha thalassemia disease, this is inconsistent with the two VA examinations. The most recent VA examination in March 2019, shows a diagnosis of sickle cell trait, corroborated with the Veteran’s February 2019 hemoglobin tests. Thus, without a medical diagnosis of any actual disability, the Board must deny the Veteran’s claim. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Therefore, since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The claim of entitlement to service connection for sickle cell anemia must be denied. REASONS FOR REMAND Entitlement to TDIU is remanded. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2019). The Veteran contends that his service-connected back and shoulder disabilities preclude him from securing substantially gainful employment. See December 2009 statement. The Veteran’s lumbar spine DDD is rated under Diagnostic Code (DC) 5237. Service connection was granted in February 2019, evaluated as 20 percent disabling effective January 2010. See February 2019 rating decision. The Veteran’s right shoulder osteoarthritis is rated under DC 5003-5201. Service connection was granted in February 2019, evaluated as 20 percent disabling effective January 2010. See February 2019 rating decision. The Veteran contends that his lumbar spine DDD and right shoulder osteoarthritis impact his ability to secure substantially gainful employment. The Veteran was afforded VA examinations in October 2010 to evaluate his service-connected disabilities. The Board notes that the October 2010 VA examinations were conducted to determine if the Veteran’s disabilities were entitled to service connection. Thus, the discussions of functional and occupational impairment were limited. The Veteran’s right shoulder impairment included limited lifting ability and his spine disability caused trouble walking and traveling. VA’s duty to assist includes the conduct of a thorough and comprehensive medical examination. Robinette v. Brown, 8 Vet. App. 69, 76 (1995). This includes providing a new medical examination when a Veteran asserts or provides evidence that a disability has worsened, and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that the Board should have ordered a contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). The Veteran’s most recent medical examinations are over nine years old and he has stated that his disabilities have increased in severity to the extent that they preclude him from securing substantially gainful employment. As such, a remand is required so that the Veteran can be afforded new examinations to determine the current severity of his service-connected lumbar spine DDD and right shoulder osteoarthritis. Opinions on the functional and occupational impacts of the Veteran’s service-connected disabilities must be included. The matters are REMANDED for the following action: 1. Contact the Veteran and his representative and request that they provide or identify and authorize the recovery of any records of treatment for right shoulder disability and lumbar spine DDD. If obtained, associate these treatment records with the electronic claims file. All records/responses received must be associated with the electronic claims file. 2. Obtain and associate any updated VA treatment records with the claims file. All records/responses received must be associated with the electronic claims file. 3. Schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity and manifestations of his lumbar spine DDD. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. The examination report must include a notation that this review of the evidence of record occurred. The examination must include range of motion studies of the spine. In reporting the range of motion findings, the examiner must comment on the extent of any painful motion, functional loss due to pain, weakness, excess fatigability, and additional disability during flare-ups. The examiner is asked to identify the symptoms and any impairment that currently result from the Veteran’s service-connected lumbar spine DDD and discuss the functional effects. 4. Schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity and manifestations of his right shoulder osteoarthritis. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. The examination report must include a notation that this review of the evidence of record occurred. The examiner is asked to identify the symptoms and any impairment that currently result from the Veteran’s service-connected right shoulder osteoarthritis and discuss the functional effects. 5. After completing the above, and any other development as many be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be re-adjudicated based on the entirety of the evidence. If any benefits sought remain denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.C. Slaughter, 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.