Citation Nr: 21004045 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 14-07 600 DATE: January 25, 2021 ORDER Entitlement to service connection for Lupus erythematosus, systemic, is denied. FINDING OF FACT The Veteran’s Lupus is not etiologically related to service. CONCLUSION OF LAW 1. The criteria for entitlement to service connection for Lupus erythematosus, systemic, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1969 to March 1977. He appeals a June 2011 rating decision denying entitlement to service connection for Lupus. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), 3.304, 3.307, 3.309, 3.310. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). Under 38 C.F.R. § 3.303(b), claims for chronic diseases enumerated in 38 C.F.R. § 3.309(a) benefit from a relaxed evidentiary standard. See Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Id. Thus, the mere manifestation during service of potentially relevant symptoms, such as joint pain for degenerative joint disease, does not establish a chronic disease at that time unless the identity of the disease is established, and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. The United States Court of Appeals for the Federal Circuit, however, has clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lupus is specifically enumerated as a chronic disease under 38 C.F.R. § 3.309(a). Accordingly, service connection may be granted on a presumptive basis for the Veteran’s Lupus if it is shown to have manifested to a degree of 10 percent or more within one year following his separation from active service. 38 C.F.R. §§ 3.307, 3.309(a). 1. Entitlement to service connection for Lupus erythematosus, systemic. The Veteran contends that his Lupus is related to toxic herbicide exposure in service. The Board notes that the Veteran served in the Republic of Vietnam and exposure to toxic herbicide agents in service has been conceded. After review of the evidence, the Board finds that service connection is not warranted. First, the Board will address presumptive service connection. The Board observes that Lupus is not associated with herbicide agent exposure for purposes of the presumption. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). Accordingly, service connection on a presumptive basis is not warranted. However, a non-presumptive disease may still be entitled to service connection on a direct basis if the medical evidence supports a relationship between that disease and exposure to an herbicide agent. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). As to direct service connection, review of the Veteran’s service treatment records does not reveal treatment for or a diagnosis of Lupus. He was treated on a single occasion for chest pain. The Veteran thought he was having heart problems at the time, but examination revealed a clear chest and the results of an EKG were within normal limits. The Veteran was diagnosed with thoracic myalgia at the time, which is characterized by pain in the thoracic spine located in the back of the chest. No other complaints of or treatment for any chest/heart conditions are shown in the Veteran’s service treatment records. He was subsequently medically discharged due to removal of his right eye after sustaining a serious injury. His coinciding medical examination showed all systems normal aside from the right eye disability. A diagnosis of the Veteran’s Lupus does not appear in the record until 2008, approximately 30 years after separation from service. Indeed, the Veteran has never asserted that his lupus began in service. Next, the evidence also does not establish that the Veteran’s lupus is related to any incident in service, to include his exposure to toxic herbicides. In this regard, the Veteran was afforded a VA examination in July 2018 and two subsequent addendums – April 2019 and December 2019 – were obtained to clarify the July 2018 examination. The VA examiner opined that the Veteran’s Lupus was less likely than not related to toxic herbicide exposure or any other event of service. The examiner specifically addressed a March 2011 National Institute of Health article discussing a relation between pesticides and lupus. The examiner determined that the article was completely irrelevant as pesticides and herbicides are completely different chemical compounds and cannot be compared to one another. Furthermore, the examiner reasoned that not only was the Veteran not diagnosed with Lupus in service, he was not diagnosed until nearly 30 years after. The Examiner noted that although the etiology of lupus is unknown, it does not lie dormant for 29 years. Once symptoms appear, the examiner noted, lupus is diagnosed rather quickly. The Board finds the opinions provided are adequate to adjudicate the claim. Specifically, the Board understands from these opinions that lupus is idiopathic in etiology. While there may be studies that support potential relationships, such as the one submitted by the Veteran, any opinion asserting that a relationship exists to the “at least as likely as not” standard would be based almost entirely upon speculation, and therefore of little probative value. The Veteran, through his representative, speculates that it is very likely that he had symptoms for years, yet did not realize as much. However, the Veteran himself has made no such assertions. Moreover, the record does not indicate that the representative possesses the requisite medical expertise render an opinion as to the Veteran’s possible history of symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Accordingly, the Board affords no probative value to the assertions made by the Veteran’s representative regarding the Veteran’s symptom history. As mentioned, the Veteran has consistently maintained that his Lupus is related to toxic herbicide exposure in service and has never asserted that the condition began in service or shortly thereafter. In addition, the medical evidence of record shows no treatment for Lupus between separation from service and diagnosis several decades later. As to the pesticide article submitted by the Veteran, the Board observes that he has never claimed that he was exposed to pesticides as well as herbicides in service. To the extent that the Veteran’s Lupus may be found to be a “chronic” disease, the medical and lay evidence of record demonstrates that the Veteran’s Lupus did not manifest to a compensable degree within one year of separation from service. As continuity of symptomatology from the time of service has not been shown, service connection on such a presumptive basis is not warranted. In arriving at this conclusion, the Board recognizes the statements from the Veteran regarding the relationship between his Lupus and active service. However, while he is competent to provide testimony regarding observable symptomatology, he is not competent to provide a nexus opinion in this case. Jandreau, 492 F.3d at 1377 n.4. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran’s Lupus are found to lack competency. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for Lupus. Because the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990). For these reasons, the claim is denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Daniel Ballinger, Associate Counsel