Citation Nr: 21072132 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 15-19 005 DATE: December 2, 2021 ORDER Entitlement to service connection for sarcoidosis is denied. FINDING OF FACT The preponderance of the evidence is against finding that the appellant's diagnosed sarcoidosis was caused or aggravated by his active military service. CONCLUSION OF LAW Sarcoidosis was not incurred in or aggravated by the appellant's active military service. 38 U.S.C. §§ 101, 1110, 1117113; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty for training (ACDUTRA) from July 1977 to October 1977 with additional service in the Alabama and Michigan National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In October 2018, the appellant presented sworn testimony during a videoconference hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the appellant's VA claims file. In a May 2019 Board decision, the claim was remanded for further evidentiary development. In a September 2020 decision, the Board denied the appellant's claim of entitlement to service connection for sarcoidosis. The appellant appealed the denial to the United States Court of Appeals for Veterans' Claims (Court). In an April 2021 Order granting an April 2021 Joint Motion for Remand (Joint Motion), the Court vacated the Board's September 2020 decision and remanded the matter of entitlement to service connection for sarcoidosis for further development in compliance with the directives specified in the Joint Motion. In August 2021, the Board remanded the appeal for further evidentiary development. As will be discussed below, a review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A supplemental statement of the case (SSOC) was issued in October 2021. The appellant's VA claims file has been returned to the Board for further appellate proceedings. 1. Entitlement to service connection for sarcoidosis. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran 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"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The term "active military, naval, or air service" means active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101(24); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). ACDUTRA includes full-time duty with the Army National Guard of any State under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. 38 U.S.C. § 101(22)(C); 38 C.F.R. § 3.6(c); see also Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). The appellant can provide competent reports of factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Similarly, laypersons are competent to diagnose and provide nexus opinions to some extent, notably where the diagnosis or opinion is not of a complex nature. Id., see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In this matter, the appellant asserts entitlement to service connection for sarcoidosis, which he contends was incurred during his period of active duty for training (ACDUTRA) from July 1977 to October 1977. See, e.g., the October 2018 Board hearing transcript. As described in the April 2015 statement of the case (SOC), the majority of the appellant's service treatment records (STRs) have been lost. The appellant was notified of the absence of the records in a January 2015 letter. However, at the October 2018 Board hearing, the appellant indicated that his STRs may be located under an incorrect name, as his name was changed during his National Guard service. To this end, the Board notes that a July 1983 letter indicates that the appellant did, in fact, change his name during his National Guard service. Accordingly, in the May 2019 Remand, the Board determined that additional inquiry should be conducted under the appellant's original name, as identified in the July 1983 letter. Pursuant to the Board Remand, the appellant's complete National Guard records were again requested by the RO in February 2020; the request noted the appellant's name change. However, the additionally obtained records were also incomplete and, unfortunately, the majority of the appellant's STRs remain unavailable. Based on the RO's efforts and the responses from the service department, the Board finds that additional efforts to obtain these records would be futile. The appellant's representative acknowledged the absence of the appellant's STRs in the Appellant's Post-Remand Brief dated August 2020. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of- the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the appellant's claim has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). As indicated above, the appellant contends that his diagnosed pulmonary sarcoidosis initially manifested during his period of ACDUTRA. See, e.g., the October 2018 Board hearing transcript. To this end, in a September 1977 Report of Medical History, the appellant reported a history of chronic or frequent colds, sinusitis, hay fever, asthma, and shortness of breath. He explained that he experiences shortness of breath when running hard, as well as coughs. See the Report of Medical History dated September 1977. A September 1977 chest x-ray was normal. A February 1978 examination noted the appellant's report of sinus congestion. An October 1982 Department of Education letter indicated that "a possible serious lung condition" was noted upon examination of the appellant. An April 1988 chest x-ray showed "[b]ilateral hilar prominence with diffuse homogenous nodular densities. Fine scattered densities in both lung fields. Several in mid-lungs." Private treatment records dated in January 2006 indicated that the appellant was diagnosed with pulmonary sarcoidosis in 1988. See also the letter from Dr. T.P. dated May 2015. The appellant was afforded a VA examination in February 2012 at which time the examiner noted a continuing diagnosis of sarcoidosis dating from 1988. The examiner indicated that the appellant served on ACDUTRA from July 1977 to October 1977 with a diagnosis of sarcoidosis by x-ray in April 1988. The examiner stated that, based on these dates, he "cannot determine whether the appellant was in service in 1988 or not. Hence, I cannot give an opinion whether the current sarcoidosis was diagnosed during active military duty and is service-related." Pursuant to the May 2019 Board Remand, a VA medical opinion was obtained in May 2020 at which time the examiner determined that the appellant's diagnosed sarcoidosis "was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The examiner noted that "[s]arcoidosis is widely accepted to be an autoimmune condition with a genetic predisposition. As such, it is unlikely to be related to a short span of active duty service, specifically." The examiner continued, "[i]t is more likely than not the Veteran would have suffered from sarcoidosis regardless of service in general. The appellant did note shortness of breath with fast running on the exam in 1977 and did check the asthma box. However, there are no further records regarding the episode." The examiner further noted that a 1983 examination was negative for respiratory complaints and it was not until a reenlistment exam in 1988 that the appellant was diagnosed with sarcoidosis." The examiner concluded, "[t]herefore, it is less likely than not that the appellant's sarcoidosis had its nexus in the brief period of active duty." When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Court has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." As described above, pursuant to the April 2021 Joint Motion, the Court vacated and remanded the Board's September 2020 decision with respect to the issue of entitlement to service connection for sarcoidosis. In pertinent part, the parties to the Joint Motion agreed that the Board erroneously relied upon a May 2020 VA medical opinion, which did not comply with the terms of the Board's May 2019 remand order. The parties stated, "because the Board's remand directed the examiner to address whether the appellant's sarcoidosis was incurred during service, the parties agree that the examiner did not adequately address the question." The parties emphasized that, "the examiner failed to address the specific question of incurrence." Accordingly, in order to comply with the Joint Motion, the Board remanded this matter in August 2021 in order to obtain a new VA medical opinion. Pursuant to the August 2021 Board Remand, a VA medical opinion was obtained in October 2021. The VA examiner specifically determined that "[t]he claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The examiner explained, "[t]here is no evidence of sarcoidosis in service. The Veteran's sarcoidosis was found incidentally on x-ray at the time of reenlistment in 1988/89. The Veteran was asymptomatic and the x-ray was not performed due to respiratory conditions." The examiner continued, "[s]erial x-rays show little change through 11/24/99. Though the Veteran did note respiratory complaints with hard running, there is no evidence of sarcoidosis at that time. Furthermore, as noted in the original response in 2020, three months of active-duty service would not cause sarcoidosis." The examiner concluded, "[t]herefore, it is less likely than not that the Veteran's sarcoidosis had its nexus in-service or was due to events in-service, including ACDUTRA. There is no evidence of a respiratory complaint on the National Guard transfer exam dated 2/25/78. It is highly unlikely a significant respiratory condition would have gone unnoted or unreported." The examiner further opined, "[t]his also suggests resolution of any complaints associated with running and physical training with respect to shortness of breath, etc. The only demonstrable complaint was that noted on the 1977 separation exam, associated with hard exercise/running. As also noted above, the 1983 exam was negative for respiratory conditions or complaints." With respect to the current claim, the Board finds that the medical evidence demonstrating the absence of nexus between the diagnosed pulmonary sarcoidosis and the appellant's ACDUTRA service outweighs the evidence suggestive of a nexus. The May 2020 VA examiner indicated that the appellant's sarcoidosis is a hereditary disease based on his genetic make-up; significantly, the examiner indicated that the appellant's sarcoidosis did not initially manifest prior to his ACDUTRA service or during said period of service. Rather, in light of the evidence of record, including the negative post-service 1983 examination, the appellant's sarcoidosis did not manifest until years later. In the October 2021 VA medical opinion, the examiner reiterated that the appellant's sarcoidosis was not incurred in or caused by his ACDUTRA service. The examiner provided detailed rationale to support this conclusion. Critically, the May 2020 and October 2021 VA medical opinions are based on review of the appellant's medical history, to include his contentions of entitlement to service connection. The Board therefore places significant weight on the cumulative findings as expressed in the May 2020 and October 2021 medical opinions. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Moreover, the record contains no medical opinions which contradict the conclusions set forth in the May 2020 and October 2021 VA medical opinions. To the extent the appellant asserts his currently diagnosed sarcoidosis was incurred during his ACDUTRA service, lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Although the appellant is a nurse, the record does not show nor does he contend, that he has specialized education, training, or experience that would qualify him to provide a competent nexus opinion as to the etiology of the diagnosed sarcoidosis. In this regard, the etiology of diagnosed sarcoidosis requires specialized testing and interpretation of such results. The Board recognizes that lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n.4 (2011). In this case, the appellant's assertions as to etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-9; Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Questions of competency notwithstanding, the appellant's theory regarding the etiology of his sarcoidosis is contradicted by the conclusions set forth in the May 2020 and October 2021 VA medical opinions, which specifically considered the appellant's contentions. The Board finds the detailed, reasoned opinions of the trained health care provider who provided both the May 2020 and October 2021 VA medical opinions to be of greater probative weight than the more general, conclusory assertions of the appellant. The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the appellant's favor when the evidence is in equipoise. Considering the record, including the May 2020 and October 2021 VA medical opinions, as well as the appellant's medical history and assertions, the Board finds that the negative evidence is more persuasive and of greater evidentiary weight. In conclusion, the preponderance of the evidence is against the claim of entitlement to service connection for sarcoidosis. Thus, the benefit-of-the-doubt rule does not avail the appellant. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54-56. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. K. Buckley, 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.