Citation Nr: 21073568 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 16-37 253 DATE: December 9, 2021 ORDER Service connection for lupus is denied. FINDING OF FACT The preponderance of the evidence is against a finding that lupus had its onset in or is otherwise related to service. CONCLUSION OF LAW The criteria for an award of service connection for lupus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 2003 to February 2004. She also had service in the United States Army Reserve, to include a period of active duty for training from June 2001 to July 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Philadelphia, Pennsylvania. In July 2019, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. The issue on appeal was previously before the Board in October 2019 and May 2021, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. On both occasions, after taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. There has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for lupus. The Veteran seeks to establish service connection for lupus. She believes the condition might be related to service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove 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). A layperson is generally incapable of opining on matters requiring medical knowledge. However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson 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, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the present case, as to evidence of a current disability, post-service treatment records and a VA examination report from August 2015 reflect a diagnosis of lupus. In a November 2014 statement, a Dr. D.B. indicated the Veteran's symptoms and laboratory findings of a positive ANA suggested that the Veteran had both fibromyalgia and lupus. Therefore, the first element of service connection has been met. As to evidence of an injury or disease in service, the Veteran's service treatment records are silent for any treatment or diagnosis expressly pertaining to lupus. However, the records do reflect in-service complaints of painful joints. As such, the second element of service connection has also been met. With regard to the nexus, or link, between the Veteran's lupus and service, the Board notes that she was afforded VA examinations for lupus in August 2015 and December 2020. However, the Board previously found that the opinions resulting from those examinations were deficient. See Board decisions dated in October 2019 and May 2021. As such, those opinions will not be afforded any probative weight. In September 2021, pursuant to the Board's May 2021 remand, an addendum opinion was obtained from the December 2020 examiner. The examiner provided an unfavorable nexus opinion. In support of that opinion, the examiner noted that there was no medical evidence or records that the Veteran's lupus was diagnosed in or caused by her period of service. The examiner noted that the Veteran was not diagnosed with lupus until eight years after service, noting post-service treatment records from July 2014, January 2015, and February 2018. Significantly, the July 2014 record reflected that there was no clinical or serologic evidence of lupus; and the Veteran's history and physicals in 2007 and 2012 were consistent with fibromyalgia. The examiner also commented on the November 2014 statement from Dr. D.B. As to that statement, the examiner concluded that it only confirmed the diagnosis of lupus, which was diagnosed eight years after service. Finally, the examiner commented on the findings of joint/muscle pain in service. Specifically, she opined that although joint pain can be a symptom of lupus, there are many causes of joint/muscle pain and it cannot be stated that the in-service complaints were consistent with a diagnosis of lupus at that time. The examiner pointed out that lupus is not a condition that is diagnosed simply based on reported symptoms. Rather, somewhat extensive testing/diagnostics are needed to confirm the diagnosis. Inasmuch as the September 2021 medical opinion was based on an accurate understanding of the facts, and articulated reasons for the conclusions reached, the Board finds the opinion highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). There are no contrary medical opinions of record. While the Veteran may believe that her lupus is related to her active service, there is nothing in the record to establish that she has the specialized training or experience necessary to render a competent opinion with respect to medically complex matters relating to the etiology of lupus under circumstances where there are no express notations or findings of lupus during service. Consequently, the Board gives more weight to the September 2021 VA medical opinion. Following review of the record, the Board must find that while the Veteran has a current diagnosis of lupus, the preponderance of the evidence weighs against a finding that the disability began during service or is otherwise related to an in-service injury, event, or disease. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appeal is denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kettler, 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.