Citation Nr: 21010803 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 14-36 301 DATE: February 25, 2021 ORDER Service connection for systemic lupus erythematosus (SLE) is granted. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran’s SLE first manifested during his first period of active duty service or within one year following service separation. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for SLE are met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1996 to April 2004, from May 2004 to September 2004, from August 2008 to January 2009 and from January 2012 to January 2013. He also had additional periods of active duty for training and inactive duty for training. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2016, the Veteran withdrew his request for a hearing before a Veterans Law Judge. See 38 C.F.R. § 20.603 (e) (2020). This matter was previously before the Board in May 2018, when the Board denied entitlement to service connection for SLE. The Veteran appealed the Board’s May 2018 denial to the United States Court of Appeals for Veterans Claims (Court). In January 2020, pursuant to a Joint Motion for Partial Remand (Joint Motion), the Court vacated the portion of the May 2018 Board decision that denied service connection for SLE and returned the claim to the Board for actions consistent with the Joint Motion. The issue was subsequently remanded by the Board in June 2020 and December 2020, in order to obtain additional medical opinions. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2020) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). The Veteran has SLE, a “chronic disease” under 38 C.F.R. § 3.309 (a). Therefore, the presumptive provisions of 38 C.F.R. §§ 3.303 (b), 3.307, and 3.309 apply to the claim for service connection for SLE. Walker, 708 F.3d 1331. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner’s opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. SLE The Veteran asserts that his currently diagnosed SLE with mesangial lupus nephritis is related to his military service. In essence, he maintains that his SLE symptoms manifested during a period of service prior to his formal SLE diagnosis in 2007 or, alternatively, were aggravated by his military service. See November 2012 and October 2014 statements. In the November 2019 Joint Motion, the parties determined that the Board erred by not adequately discussing whether the Veteran’s SLE, which may be subject to presumptive service connection, was present during active service or ACDUTRA, or within the one-year following discharge from active duty. See 38 C.F.R. §§ 3.307, 3.309(a). The parties noted that the record reflects an October 2007 diagnosis of SLE, and that, while the condition was not diagnosed during a period of active duty or ACDUTRA, a May 2011 VA examiner opined that it was as likely as not that the disability had its onset sometime prior to 2007. However, the examiner did not explain the basis for that conclusion or why he would not speculate as to when the Veteran’s lupus occurred. Although a subsequent August 2015 VA lupus examination is of record, a nexus opinion was not provided. An August 2020 VA medical examiner determined that the Veteran’s SLE was less likely than not incurred in or caused by his service. The examiner reviewed a July 2007 opinion authored by a private rheumatologist who indicated that the Veteran started to have symptoms (multiple joint pains in knee, hands, and feet) one month prior, during police academy training. He was also noted to have had mouth sores, malar rash of face, fatigue, malaise and fever within that month prior to the consultation. The examiner found no evidence that any of those symptoms started during the Veteran’s last active duty period or within one year of 2004 as the onset of symptoms were more than two-and-a-half years after the last period of active duty. The examiner did acknowledge, however, that a prior VA examiner opined that SLE had its onset prior to 2007 but noted that this opinion conflicted with the July 2007 rheumatologist consultation clearly stating that the onset of symptoms was in June 2007. Based on this evidence, the examiner opined that it was less likely than not that the SLE arose during the period of active duty, ACDUTRA, or within one year of discharge. Nonetheless, a review of the service treatment records demonstrates that the August 2020 VA clinician’s opinion was based on an inaccurate factual premise. In this regard, a June 2003 STR (during the Veteran’s first period of active duty) reflected evidence of foot and leg pain (which the August 2020 VA clinician indicated were original symptoms of lupus). Additionally, the Veteran has asserted, in a September 2020 written statement, that the June 2003 STR, as well as various other STRs, documented symptoms and complaints that could have represented earlier manifestations of SLE, including during active duty. In order to address these discrepancies, the Board requested an additional medical opinion. See December 2020 remand directive. This most recent VA medical opinion, dated in December 2020, again found that the Veteran’s SLE was less likely as not related to service. The examiner reasoned that the Veteran was diagnosed with SLE in 2007, although the examiner acknowledged that “symptoms of chronic multisystemic conditions (like lupus) are expected to precede the date of actual diagnoses.” According to the examiner, the Veteran had a “constellation of symptoms” that were in relatively close proximity in 2007 that lead a physician to pursue a workup for lupus and it was this constellation of symptoms that revealed the picture of a chronic multisystemic disease such as lupus. The examiner further stated that it was purely speculative to look in hindsight and pick one specific symptomology of lupus to indicate the date of onset. The examiner also indicated that, when looking back at records, specifically the ones that the Board referenced in its December 2020 remand, each of these symptoms were not only spaced a few years apart, but had a reasonable diagnosis associated with them. For example, abdominal pain noted in a June 1999 record was related to constipation. In a March 1999 record, the Veteran had pharyngitis for sore throat and swollen glands. In February 2000, the rash on the Veteran’s neck was due to tinea and in July 2000, the Veteran had an upper respiratory infection and asthma. A March 2003 record noted foot and knee pain due to pes planus and PFPS. In sum, the examiner noted that a reasonable and prudent physician at that time, given random sporadic symptoms identified by reasonable causes over a time span of several years, would not think about or consider further evaluation for lupus. Therefore, the examiner opined that it would be speculative to presume in hindsight that the Veteran’s lupus started or should have been diagnosed at those particular times. The Board has reviewed the extensive lay and medical evidence of record pertaining to the Veteran’s SLE symptoms, dates of diagnosis, and the medical opinions addressed above. It is clear that the Veteran’s SLE is a complicated medical issue. According to Dorland’s Illustrated Medical dictionary, SLE is defines as: “a chronic, inflammatory, often febrile multisystemic disorder of connective tissue that proceeds through remissions and relapses; it may be either acute or insidious in onset and is characterized principally by involvement of the skin, joints, kidneys, and serosal membranes. The etiology is unknown, but it may be a failure of regulatory mechanisms of the autoimmune system, since there are high levels of numerous autoantibodies against nuclear and cytoplasmic cellular components. The condition is marked by a wide variety of abnormalities, including arthritis, arthralgias, nephritis, central nervous system manifestations, pleurisy, pericarditis, leukopenia or thrombocytopenia, hemolytic anemia, and elevated erythrocyte sedimentation rate, and the presence in the blood of distinctive cells called LE cells.” See Dorland’s Illustrated Medical Dictionary 32nd Edition (2012), at p. 1080. In sum, SLE is an autoimmune disease of unknown etiology marked by a wide variety of abnormalities. Of primary importance, the Board notes that none of the VA medical opinions of record have addressed the Veteran’s Bell’s Palsy episode diagnosed in 1997 (during the Veteran’s first period of active duty service and now a service-connected disability). According to a medical article from the US National Library of Medicine, National Institute of Health (available to the public on the world wide web), SLE is a multisystem disorder involving skin, joints, kidney, heart, lung and the nervous system. Nervous system involvement in SLE has been reported to vary from 40 to 70 percent. Although cranial neuropathy, particularly facial, was noted to be a rare event in SLE, the medical article did report a case of facial palsy due to SLE. See https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3062381 (Recurrent lower motor neuron type facial palsy: an unusual manifestation of SLE). Notably, service records documenting the Veteran’s spontaneous onset of Bell’s Palsy did not provide any indication of its likely etiology. This diagnosis of Bell’s Palsy, rendered during the Veteran’s first period of active duty service, appears to fit within the definition of the wide variety of abnormalities, including central nervous system manifestations, associated with SLE. Moreover, service records include notations of headaches and abdominal pain in 1998. In 1999, the Veteran was found to have swollen glands and in July 2000 he reported fatigue and breathing problems. In February 2001, he was found to have an airway obstruction and in June 2003, he was noted to have leg pain. The Board acknowledges that many of these symptoms were followed by diagnoses unrelated to SLE during service; however, given the complicated nature of diagnosing SLE, the Board finds it reasonable that some of those symptoms may have been early manifestations of SLE. This is particularly true with the Veteran’s Bell’s Palsy episode, for which an etiology in service was not provided. None of the VA medial opinions of record discuss whether the Veteran’s Bell’s Palsy was an early manifestation of SLE. Again, the May 2011 VA examiner determined that it was as likely as not that the Veteran’s SLE had its onset sometime prior to 2007. The Board also acknowledges, as highlighted by the December 2020 VA examiner, that to arrive at the actual time/date SLE started requires a certain degree of “reasonableness” and that the issue ultimately turns on the “constellation of symptoms” that provides the picture of a chronic multisystemic disease such as lupus. However, determining whether a constellation of symptoms is present turns on various factors. For example, service records show complaints of possible SLE symptoms spanning from 1997 to 2003 (Bell’s Palsy episode, headaches, joint pain, shortness of breath). Unlike the Veteran’s SLE being treated and diagnosed by one medical professional, the Veteran’s treatment in service was conducted by various military medical personnel. As such, it is reasonable to assume that the combination of the Veteran’s symptoms may not have been reviewed in their totality, as was done by the Veteran’s doctor following service separation in 2007. See July 2007 Rheumatology Consultation. Moreover, although the December 2020 VA examiner indicated that the Veteran’s SLE most likely began in 2007, an April 2006 Patient Medical History form (from the Pacific Ridge Medical Associates), completed by the Veteran, shows that he specifically reported having symptoms of weight change, fatigue, bleeding gums, swelling of feet and ankles, joint pain, joint stiffness, muscle weakness, and Bell’s Palsy. The fact that the Veteran noted those symptoms in April 2006 is also supportive of a finding that they had their onset prior to the date provided on the form. In sum, the Board finds that the evidence is at least in relative equipoise as to whether some of the Veteran’s SLE symptoms first manifested during his first period of active duty service or within the one-year presumptive period following service separation. Therefore, resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for SLE is warranted. 38 C.F.R. § 3.102. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.