Citation Nr: 21005087 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 14-22 992 DATE: January 29, 2021 ORDER Entitlement to service connection for sarcoidosis is denied. FINDING OF FACT The preponderance of the evidence weighs against finding that the Veteran's sarcoidosis had its onset in service or manifested within one year of service or was otherwise caused by his active duty military service, nor is there competent evidence demonstrating that the Veteran’s reported in-service breathing symptoms were early manifestations of the sarcoidosis. CONCLUSION OF LAW The criteria for entitlement to service connection for sarcoidosis are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1978 to March 1992 and from October 2001 to May 2002. He also had National Guard service. The Veteran died in May 2018; the appellant is his surviving spouse. The Veteran provided testimony during a personal hearing before a decision review officer (DRO) in August 2013. A transcript of the hearing is associated with the claims file. In March 2018, this appeal was before the Board, at which time it was remanded for further evidentiary development. In the June 2020 Board decision, the Board determined that new and material evidence had been received for the claims for service connection for sarcoidosis, shoulder and neck pain, and back pain, and granted service connection for the shoulder and neck pain, and for the back disability, and remanded the claim for service connection for sarcoidosis to obtain a medical opinion regarding etiology of the condition. In September 2020, a medical opinion was requested and is of record and appears adequate. As such, the RO complied with the remand directives to the extent possible. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Appellant has not raised any issues with the duty to notify or duty to assist in obtaining documentary evidence. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Further, neither the Appellant nor her representative has alleged any deficiency with the conduct of the DRO hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens, 814 F.3d at 1361, that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott, 789 F.3d at 1381. Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. Here, prior to his death, the Veteran requested service connection for sarcoidosis. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA has established certain rules and presumptions for chronic diseases, such as sarcoidosis. See 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303 (b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). The medical evidence shows that the Veteran had a diagnosis of sarcoidosis during the claim period. He reported that he was first diagnosed with sarcoidosis within one year of service discharge. The question in this case is whether a causal relationship or nexus existed between the Veteran’s sarcoidosis and an in-service disease, injury, and event. The Board finds that a preponderance of the evidence weighs against finding a direct causal relationship or nexus between the Veteran’s sarcoidosis and an in-service disease, injury, and event, and that service connection is not warranted under any of the bases afforded specifically to certain chronic diseases under 38 C.F.R. § 3.309(a). Although sarcoidosis is a chronic disease contemplated under the regulation, the Veteran’s service records contain no in-service notation of the disease. See 38 C.F.R. §§ 3.303(b), 3.309(a). First, the Veteran’s active duty service treatment records (STRs) do not reflect any complaints, findings, treatment, or diagnosis of a respiratory disease or injury. The record reflects that following the Veteran’s period of active duty, he served in the National Guard, with active duty from October 2001 to May 2002. The record contains various STRs from his active duty service, but the STRs from his period of active duty while in the National Guard have not been located, and the RO has done everything possible to locate them. See February 2014 and April 2014 VA memorandum and formal finding of unavailability of STRs. (It is noted that in such situations in which STRs are missing, not only does the Board have a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of- the-doubt rule, but an enhanced duty to assist. O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). This enhanced duty to assist was fulfilled as outlined above, and the Board’s analysis of the Veteran’s claim below has been undertaken under this heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of- the-doubt rule.) Nonetheless, the Veteran asserted, prior to his death, that he was diagnosed with sarcoidosis while in service with the National Guard and that his symptoms began during active service (see DRO hearing testimony). However, the record does not reflect any continuity of symptomatology since service. Further, the evidence of record does not reflect manifestations of sarcoidosis within one year of the Veteran’s separation from service. Rather, the earliest notation of sarcoidosis is found in private records provided by the Veteran in July 2003 when he reported for pneumonia and in a follow up record, which noted a possible sarcoidosis diagnosis in September 2003 following a CT scan, and a diagnosis in October 2003 following a lung biopsy. See 38 C.F.R. § 3.307(a)(3). When he received this treatment in 2003, he did not report a history of respiratory symptoms during the one-year presumptive period. Thus, the evidence demonstrates that the Veteran’s sarcoidosis was not shown to be a chronic disease in service, exhibited no continuity of symptomatology, and did not manifest within a year of service. See 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). In addition, in September 2020, an opinion was provided, and the examiner considered the available service records, the Veteran’s and Appellant’s contentions, as well as the post-service medical records. The examiner thereafter opined that the sarcoidosis was less likely than not incurred in or caused by service. The rationale was that first, there was no evidence or indication that the Veteran was ever seen for or diagnosed with sarcoidosis during or within one year after service. Rather, he was not diagnosed until October 2003 when transbronchial and endobronchial biopsies revealed noncaseating granulomatous disease consistent with sarcoidosis. The examiner cited to medical literature, explaining that “it is still uncertain which foreign substance triggers the body’s abnormal immune response, but it has been suggested that fungi, viruses, or bacteria are likely triggers.” The examiner further explained that medical researchers believe sarcoidosis to be an abnormal immune response and explained the inflammation of cells in a healthy person versus someone with sarcoidosis. The examiner further opined that “the Veteran had two strong risk factors for having developed sarcoidosis in being African American and having a positive family history of sarcoidosis.” Therefore, the examiner opined that “the Veteran’s medical records support that any currently diagnosed condition related to Veteran’s claimed sarcoidosis less likely than not had its onset in service or within one year following separation from service or was causally related to service.” In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In this case, the examiner was aware of the Veteran’s medical history, provided a fully articulated opinion, cited to medical literature, provided an alternative etiology as to this particular Veteran’s specific risk factors, and furnished a reasoned analysis for his conclusions. The Board therefore attaches significant probative value to this opinion. There is no other competent medical opinion to the contrary. The Board also reviewed the Veteran’s lay statements in which he reported that his sarcoidosis was connected to his service. The Veteran was competent to report having had trouble breathing, but was not competent to provide a diagnosis of sarcoidosis in service or within a presumptive period, or a medical opinion linking that symptom with his sarcoidosis. Opinions regarding the diagnosis and etiology of sarcoidosis are complex and generally beyond the competency of a lay witness. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran did not state, and the record does not reflect, that he had any medical education, experience, or training, nor had he offered any basis in common lay knowledge to support his opinion. Finally, the Board also considered the Veteran’s buddy letters from fellow servicemembers submitted in July 2003. First, Dr. J.S. stated that during annual training from May 31 to June 21, 2003, the Veteran was not himself, constantly was short of breath, and was always tired. Then, from J.J., it was stated that the Veteran was not acting normal, and that he trouble catching his breath, maintaining balance, and generally not with it despite ample time to rest between tasks. Although these statements are probative, and as Dr. J.S. and J.J. are both competent to report what they witnessed as they were present at the time, the Board notes that in July 2003, the Veteran was diagnosed with pneumonia, and subsequently, in a follow up care for his pneumonia, it was then discovered the changes in his lungs as found in the September 2003 CT scan. Further, the time period the two servicemembers described are after the Veteran’s National Guard active duty service, which was between October 2001 and May 2002. Therefore, even considering these statements, they are still after the one-year period since separation from active service. No respiratory condition was actually diagnosed during this annual training period, nor is there any medical opinion linking the symptoms described to the later diagnosed sarcoidosis. As such, the Board gives more probative weight to the 2020 VA medical opinion and the objective treatment records that document a sarcoidosis diagnosis in October 2003, over 10 years post active duty service and 17 months post- active service with the National Guard. In short, the preponderance of the evidence is against finding that the Veteran’s sarcoidosis was due to an in-service disease, injury, or event; or was manifest within a presumptive period. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In the absence of a nexus, the criteria for service connection for sarcoidosis are not met and the appeal must be denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, 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.