Veterans Medical Advisor

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                         Case from Bureau of Veterans Appeals

Dr. Bash is a veteran of


Citation Nr: 0905272

Decision Date: 02/13/09 | Archive Date: 02/19/09

DOCKET NO. 04-16 673A

On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida

THE ISSUES

1. Entitlement to service connection for hypertension, to include as secondary to service-connected Behcet's syndrome.

2. Entitlement to service connection for shingles, to include as secondary to service-connected Behcet's syndrome.

3. Entitlement to service connection for obesity, to include as secondary to service-connected Behcet's syndrome.

4. Entitlement to service connection for asthma, to include as secondary to service-connected Behcet's syndrome.

5. Entitlement to service connection for sleep apnea, to include as secondary to service-connected Behcet's syndrome.

6. Entitlement to service connection for hyperlipidemia, to include as secondary to service-connected Behcet's syndrome.

7. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected Behcet's syndrome.

REPRESENTATION

Veteran represented by: The American Legion

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

David Traskey, Associate Counsel

INTRODUCTION

The Veteran had active service from February 1986 to July 1986.

This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of April 2003 by the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO).

The Veteran requested a regional office hearing in connection with the current claims. The hearing was scheduled and subsequently held in October 2004. The Veteran testified at that time and the hearing transcript is of record.

In September 2008, the Board requested expert Veteran's Health Administration (VHA) medical opinions in this case. In January 2009, the Board provided the Veteran with copies of the opinions and provided a 60-day period of time for a response. The Veteran indicated that he had nothing further to submit in support of his claims. The VHA medical opinions have been associated with the Veteran's claims file.

FINDINGS OF FACT

1. While hypertension was not present during service or manifest to a compensable degree within one year after discharge from service, there is competent, probative evidence of record demonstrating that the Veteran's hypertension is etiologically related to his service- connected Behcet's syndrome and that it has been aggravated by the service-connected Behcet's syndrome.

2. While diabetes mellitus was not present during service or manifest to a compensable degree within one year after discharge from service, there is competent, probative evidence of record demonstrating that the Veteran's diabetes mellitus is etiologically related to his service-connected Behcet's syndrome and that it has been aggravated by the service-connected Behcet's syndrome.

3. While sleep apnea was not present during service, there is competent, probative evidence of record demonstrating that the Veteran's sleep apnea is etiologically related to his service-connected Behcet's syndrome and that it has been aggravated by the service-connected Behcet's syndrome.

4. There is no clear and unmistakable evidence of record to rebut the presumption of soundness at the time of entry to active duty. Asthma was not present during service, but there is competent, probative evidence of record demonstrating that the Veteran's asthma is etiologically related to his service-connected Behcet's syndrome and that it has been aggravated by the service-connected Behcet's syndrome.

5. Shingles were not present during service, any current shingles are not attributable to any event, injury, or disease in service, and the Veteran's shingles are not etiologically related to his service-connected Behcet's syndrome, nor are shingles shown to have been aggravated by the service- connected Behcet's syndrome.

6. Obesity is not a disability for which service connection can be awarded.

7. Hyperlipidemia is not a disability for which service connection can be awarded.

CONCLUSIONS OF LAW

1. Hypertension is caused by the Veteran's service-connected Behcet's syndrome; therefore secondary service connection is warranted. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2008); Allen v. Brown, 7 Vet. App. 439 (1995).

2. Diabetes mellitus is caused by the Veteran's service- connected Behcet's syndrome; therefore secondary service connection is warranted. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2008); Allen v. Brown, 7 Vet. App. 439 (1995).

3. Sleep apnea is caused by the Veteran's service-connected Behcet's syndrome; therefore secondary service connection is warranted. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2008); Allen v. Brown, 7 Vet. App. 439 (1995).

4. Resolving all doubt in the Veteran's favor, asthma is caused by the Veteran's service-connected Behcet's syndrome; therefore secondary service connection is warranted. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2008); Allen v. Brown, 7 Vet. App. 439 (1995).

5. The criteria for entitlement to service connection for shingles, to include as secondary to service-connected Behcet's syndrome, are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2008); Allen v. Brown, 7 Vet. App. 439 (1995).

6. Service connection for obesity is not warranted. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2008); Allen v. Brown, 7 Vet. App. 439 (1995).

7. Service connection for hyperlipidemia is not warranted. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2008); Allen v. Brown, 7 Vet. App. 439 (1995).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Establishing Service Connection

Service connection may be granted for disease or injury incurred in or aggravated by service. Establishing service connection requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a) (2008).

Service connection may also 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (West 2002); 38 U.S.C.A. §§ 1110, 1131 (2008). If a chronic disorder such as hypertension or diabetes mellitus is manifest to a compensable degree within one year after separation from service, the disorders may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2008).

Service connection may also be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disability. When service connection is established for a secondary condition, the secondary condition shall be considered part of the original condition. 38 C.F.R. § 3.310(a) (2008). According to Allen v. Brown, 7 Vet. App. 439 (1995), secondary service connection may be found where a service connected disability aggravates another condition (i.e., there is an additional increment of disability of the other condition which is proximately due to or the result of a service-connected disorder).

The Board notes that there was a recent amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected disability is judged. Although VA has indicated that the purpose of the regulation was merely to apply the United States Court of Appeals for Veterans Claims (Court) ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre- aggravation baseline level of disability for the non-service- connected disability before an award of service connection may be made. See Allen, supra. This had not been VA's practice, which suggests that the recent changes amount to a substantial change. Id. at 447-449. Given what appear to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, a version which favors the Veteran.

Under the provisions of 38 C.F.R. § 3.310 in effect prior to October 10, 2006, a disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). The Veteran's claim in this case was filed prior to October 10, 2006.

I. Hypertension, Sleep Apnea, and Diabetes Mellitus

The Veteran testified that his hypertension, sleep apnea, and diabetes mellitus are related to service or are secondary to his service-connected Behcet's syndrome. Service treatment records (STRs) associated with the Veteran's claims file show that he was afforded a clinical evaluation and physical examination in January 1986 prior to entering service. The Veteran's blood pressure was interpreted to be 80/70 and no evidence of hypertension, sleep apnea, or diabetes mellitus was found. The Veteran specifically denied ever having high blood pressure. In March 1986, the Veteran reported to sick call with subjective complaints of bilateral leg numbness. The Veteran's blood pressure was interpreted to be 110/72.

The Veteran was subsequently diagnosed with and treated for transverse myelitis in May 1986. Shortly thereafter, the Veteran appeared before a Physical Evaluation Board (PEB). The Veteran was placed on the temporary disability retirement list (TDRL). He was afforded multiple TDRL examinations during the period November 1987 to December 1990. No cardiovascular, respiratory, or endocrine abnormalities were found. In December 1990, the Veteran appeared before another PEB and was found to be unfit for further military duty as a result of his transverse myelitis. He was permanently retired at that time.

The first pertinent post-service treatment record is dated September 1993. The Veteran was given a VA general medical examination (GME) at that time. The Veteran's blood pressure in a sitting position was 160/100, 144/100, and 144/100. The Veteran's blood pressure in a recumbent position was 142/92 and 156/110 in a standing position. Although a review of systems was negative for cardiovascular or endocrine abnormalities, the examiner diagnosed the Veteran as having hypertensive cardiovascular disease, hyperlipidemia, and obesity.

A September 2002 VA outpatient treatment note identified the Veteran as a "borderline diabetic." In a VA rheumatology consultation note dated March 2003, the Veteran was diagnosed as having obesity, poorly controlled hypertension, and diabetes mellitus, among other conditions.

In March 2003, the Veteran underwent a series of VA Compensation and Pension (C&P) Examinations in connection with numerous claims. The Veteran's lungs were clear with good, symmetrical ventilation. No wheezes, rhonchi, or rales were noted. The Veteran stated that he used a Bi-Pap machine while sleeping. The impression was sleep apnea.

The Veteran further stated that he had hyperlipidemia since 2001. The Veteran's blood pressure was interpreted to be 150/99 and 151/96 on recheck. The impression was arterial hypertension and hyperlipidemia, among other conditions. After reviewing Harrison's Principles of Internal Medicine, the examiner concluded that there was no relationship between the Veteran's Behcet's syndrome and his sleep apnea, hypertension, or diabetes mellitus. The examiner further noted that the Veteran had a "metabolic syndrome" because he has hypertension, diabetes, and morbid obesity.

Associated with the Veteran's claims file is a private opinion dated May 2004 from D. Hammoudi, M.D. Dr. Hammoudi reviewed medical records for the period beginning in 1997 and concluded that the Veteran's Behcet's syndrome was the "primary factor" for his hypertension, sleep apnea, and diabetes mellitus, among other conditions.

C. Bash, M.D. submitted a medical opinion dated May 2004 in support of the Veteran's claims. Dr. Bash reported that he reviewed the Veteran's medical records as well as pertinent medical literature. According to Dr. Bash, the Veteran's sleep apnea was caused by his "BD [Behcet's disease] induced brainstem lesion because the respiratory central is located in the brainstem, the literature supports an association (see Sakuri et al.) and no other etiology has been proven."

Dr. Bash added that the Veteran's service-connected fibromyalgia, which was part of the 100 percent rating assigned for Behcet's syndrome, made it impossible for the Veteran to exercise, thereby causing his morbid obesity, diabetes mellitus, hypertension, and "lipid abnormalities." Dr. Bash cited to a specific scholarly medical article (i.e., Yavuz, 1998) in support of this contention. See also January 2003 rating decision (granting service connection for fibromyalgia).

The Veteran was afforded a series of VA C&P examinations in March and April 2005 in connection with numerous claims. Pulmonary function tests (PFTs) administered at that time were interpreted to show a mild obstructive disease with no evidence of reversibility. The Veteran also reported wheezing, shortness of breath, and coughing. The Veteran stated that he "wore oxygen at night" and was diagnosed with a respiratory condition in 1992. The impression was sleep apnea, among other conditions. Based on a "literature search," the examiner concluded that it was "less likely than not" that the Veteran's sleep apnea was secondary to his service-connected Behcet's syndrome.

The Veteran's history of hyperlipidemia and diabetes mellitus was noted at the time of the VA hypertension examination. The Veteran's blood pressure was interpreted to be 153/88. The impression was essential hypertension, hyperlipidemia, and obesity, among other conditions. Upon VA examination for the Veteran's diabetes mellitus, the examiner noted that the Veteran's past medical history was significant for hypertension and diabetes mellitus, among other conditions. The Veteran reported that he controlled his diabetes mellitus only through exercise. The examiner diagnosed the Veteran as having "type II diabetes mellitus, on diet only, blood sugars controlled." The examiner also noted that the Veteran had poorly controlled hypertension, hyperlipidemia, Behcet's syndrome, and morbid obesity. The examiner opined that the Veteran's diabetes mellitus was likely related to a "metabolic syndrome," rather than his Behcet's syndrome. This "metabolic syndrome" was manifested by hypertension, diabetes mellitus, abdominal obesity, and hyperlipidemia.

In November 2008, VA requested numerous expert Veteran's Health Administration (VHA) medical opinions from VA physicians in connection with the Veteran's claims. These physicians reviewed the Veteran's claims file and conducted medical literature searches prior to rendering the requested opinions.

According to a VA chief of nephrology, there was no evidence to show that the Veteran had hypertension in service or within one year after discharge from service. The chief nephrologist also noted that the Veteran's Behcet's syndrome caused physical inactivity which invariably led to weight gain. Based on his professional opinion and review of the claims file, the chief nephrologist concluded that the consequences of the Veteran's Behcet's syndrome, "especially the weight gain, do appear to be linked to his current hypertension."

According to a VA chief of rheumatology, it was "highly unlikely" that the Veteran's sleep apnea, hypertension, and diabetes mellitus were "directly caused" by his service- connected Behcet's syndrome given the absence of medical literature linking these conditions to Behcet's syndrome. On the other hand, the chief rheumatologist concluded that it was "highly likely" that the sleep apnea, hypertension, and diabetes mellitus were permanently aggravated or worsened by the Behcet's syndrome. In support of these conclusions, the chief rheumatologist pointed out that obesity was a side-effect of the Veteran's treatment (i.e., Prednisone) for Behcet's syndrome, and that obesity also led to sleep apnea, hypertension, and diabetes mellitus. The chief rheumatologist also indicated the following dates of aggravation: sleep apnea (2003); hypertension (1993); and diabetes mellitus (2002).

With regard to the Veteran's sleep apnea claim, a VA pulmonologist also noted that sleep apnea "is correlated with obesity" and that treatment of the Veteran's Behcet's syndrome with corticosteroids led to "a 100 lb weight gain." The pulmonologist further stated:

It is as likely as not that the disorder [sleep apnea] was caused by the weight gain from steroid treatment for the Behcet's; the disorder was with medical certainty worsened with every increment of weight gain from the long course of steroid therapy.

With regard to the Veteran's diabetes mellitus claim, a VA chief of endocrinology noted that the Veteran was diagnosed with diabetes in 2002. Consequently, the chief endocrinologist concluded that the Veteran's diabetes mellitus was neither manifest during service or within one year after discharge from service. The chief endocrinologist also indicated that the Veteran had numerous risk factors for diabetes mellitus, to include a family history of the condition, obesity, and Prednisone therapy for treatment of his Behcet's syndrome. Although the chief endocrinologist's review of pertinent medical literature found no association between Behcet's syndrome and diabetes, he noted that Prednisone therapy "can bring out or exacerbate obesity." The chief endocrinologist further noted that given the link between obesity and diabetes mellitus, "it is at least as likely as not that the [Veteran's] diabetes mellitus is related to the prednisone therapy for the patient's Behcet's Syndrome."

The Veteran also submitted numerous articles and abstracts that described Behcet's syndrome and the effects of this condition. These articles and abstracts were reviewed and associated with the claims file.

This evidence, however, does not have bearing on the issue on appeal. See 38 C.F.R. § 20.1304(c) (2008). Specifically, these articles are too general in nature to provide, alone, the necessary evidence to show that the Veteran's hypertension, sleep apnea, or diabetes mellitus were related to his period of active service either on a direct or secondary basis. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998). The medical treatise, textbook, or article must provide more than speculative, generic statements not relevant to the Veteran's claim but must discuss generic relationships with a degree of certainty for the facts of a specific case. See Wallin v. West, 11 Vet. App. 509, 514 (1998). Here, these articles do not address the facts of the Veteran's specific case. Thus, the Board concludes that these articles do not show that the Veteran's hypertension, sleep apnea, or diabetes mellitus were related to his period of active service either on a direct or secondary basis.

Given the evidence of record, the Board finds that the preponderance of the evidence is against a finding of service connection on a direct basis for hypertension, sleep apnea, or diabetes mellitus. The Veteran's STRs are negative for a diagnosis of or treatment for these conditions in service, and there is no evidence that he was treated for or diagnosed with hypertension or diabetes mellitus within one year after discharge from service. Rather, the first pertinent medical evidence of record documenting these conditions is many years after discharge from service.

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In this case, the lapse of years between service and the first evidence of hypertension, sleep apnea, or diabetes mellitus is evidence against the Veteran's claim. Furthermore, although the Veteran had hypertension, sleep apnea, and diabetes mellitus during the pendency of this claim, there is no competent, probative medical evidence of record linking these disabilities to the Veteran's period of active service on a direct basis.

The United States Court of Appeals for Veterans Claims (Court) has in the past held that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, the Court has also held that lay persons, such as the Veteran, are not qualified to offer an opinion that requires medical knowledge, such as a diagnosis or an opinion as to the cause of a disability that may be related to service. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2007) (holding that a layperson may provide competent evidence to establish a diagnosis where the lay person is "competent to identify the medical condition"). Here, the Veteran is capable of observing symptoms of hypertension, sleep apnea, or diabetes mellitus, but he is not competent (i.e., professionally qualified) to offer an opinion as to the cause of these conditions.

In view of the absence of abnormal findings in service and the first suggestion of pertinent disability many years after service, relating the Veteran's hypertension, sleep apnea, or diabetes mellitus to service on a direct basis would certainly be speculative. However, service connection may not be based on a resort to pure speculation or even remote possibility. See 38 C.F.R. § 3.102 (2008). As previously stated, entitlement to direct service connection requires a finding that there is a current disability that has a relationship to an in-service injury or disease.

In this case, there is competent medical evidence showing diagnoses of hypertension, sleep apnea, and diabetes mellitus, but there is no competent, probative medical evidence to link these conditions, which occurred many years after discharge from service, to the Veteran's period of active service. Accordingly, the Board concludes that the Veteran's claim of service connection for hypertension, sleep apnea, and diabetes mellitus must be denied on a direct and/or presumptive basis.

While the Veteran is not entitled to service connection on a direct and/or presumptive basis, the Board must examine his claims for service connection on a secondary basis. In particular, the Veteran contends that his hypertension, sleep apnea, and diabetes mellitus are secondary to the service- connected Behcet's syndrome. Here, the competent, probative medical evidence of record enables a finding that the Veteran's currently diagnosed hypertension, sleep apnea, and diabetes mellitus are caused by his service-connected Behcet's syndrome.

The Board acknowledges that there are competing medical opinions in this instance offering different conclusions as to whether the Veteran's disabilities are secondary to his service-connected Behcet's syndrome. The Board notes that the March 2003 VA examiner found no relationship between the Veteran's Behcet's syndrome and his hypertension, sleep apnea, or diabetes mellitus based on a review of Harrison's Principles of Internal Medicine.

The Board, however, finds that the November 2008 VHA expert opinions offered by a VA chief nephrologist, chief rheumatologist, chief endocrinologist, as well as a pulmonologist to be highly probative evidence on the issue of secondary service connection.

In particular, each of the physicians by virtue of their respective titles are chiefs or specialists in their respective fields of nephrology, rheumatology, endocrinology, and pulmonology, and as such, they possess significant knowledge and skill in analyzing data and drawing medical conclusions. In addition, the Board notes that the VA expert opinions were based on a thorough review of the claims file as well as a review of pertinent medical literature. Moreover, the Board points out that each of the opinions requested linked the Veteran's hypertension, sleep apnea, or diabetes mellitus to his service-connected Behcet's syndrome (and specifically to the medications used to treat this condition). The Board also notes that the November 2008 expert opinions are more detailed and thorough than the March 2003 VA opinion. The November 2008 expert opinions are also consistent with the private opinions offered by Drs. Hammoudi and Bash.

Thus, the Board finds that the Veteran is entitled to service connection for hypertension, sleep apnea, and diabetes mellitus on a secondary basis. Accordingly, service connection for hypertension, sleep apnea, and diabetes mellitus is granted, subject to the law and regulations governing payment of monetary benefits.

II. Asthma

Generally, veterans are presumed to have entered service in sound condition as to their health. See 38 U.S.C.A. § 1111 (West 2002); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The presumption of sound condition provides:

[E]very veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.

See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2008). This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby, 1 Vet. App. at 227. According to 38 U.S.C.A. § 1153 (West 2002), a "preexisting injury or disease will be considered to have been aggravated by active . . . service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease."

A history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. Determinations should not be based on medical judgment alone as distinguished from accepted medical principles, or on history alone without regard to clinical factors pertinent to the basic character, origin and development of such injury or disease. They should be based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof. 38 C.F.R. §§ 3.303(c), 3.304(b) (2008); see also Crowe v. Brown, 7 Vet. App. 238 (1994).

VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).

A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2008). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence in the record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b) (2008).

Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Diseases of allergic etiology, including bronchial asthma, may not be disposed of routinely for compensation purposes as constitutional or developmental abnormalities. Service connection must be determined on the evidence as to existence prior to enlistment and, if so existent, a comparative study must be made of its severity at enlistment and subsequently. Increase in the degree of disability during service may not be disposed of routinely as natural progress nor as due to the inherent nature of the disease. Seasonal and other acute allergic manifestations subsiding on the absence of or removal of the allergen are generally to be regarded as acute diseases, healing without residuals. The determination as to service incurrence or aggravation must be on the whole evidentiary showing. 38 C.F.R. § 3.380 (2008).

STRs associated with the Veteran's claims file show that he was afforded a clinical evaluation and physical examination in January 1986 prior to entering service. A notation on the Veteran's clinical evaluation noted that he had a history of asthma. The Veteran described his health as "good," but provided a medical history in which he admitted to having asthma. An Applicant Medical Prescreening Form indicated that the Veteran took Primatene Mist for asthma and bronchitis and that he last had asthma at age 11.

Associated with the Veteran's claims file is a letter from W. Greenberg, M.D. dated February 1986. Dr. Greenberg noted that the Veteran was a patient of his from July 1979 through December 1981. During that time, the Veteran was treated with bronchodilator medications for allergy symptoms. Dr. Greenberg stated that the Veteran "has never had an asthma attack," but that he was treated for occasional wheezing, upper respiratory infections, and seasonal allergies.

Also included in the Veteran's claims file is a letter from E. Havilopoulos, M.D. dated February 1986. Dr. Havilopoulos stated that the Veteran was successfully treated for a "respiratory problem, wheezing" with Marax in May 1976. Dr. Havilopoulos noted that the Veteran had not been seen in the office since November 1979.

The Veteran was subsequently diagnosed with and treated for transverse myelitis in May 1986. Shortly thereafter, the Veteran appeared before a Physical Evaluation Board (PEB). The Veteran was given a clinical evaluation and physical examination at that time, which was negative for respiratory abnormalities. The Veteran was placed on the temporary disability retirement list (TDRL). He was afforded multiple TDRL examinations during the period November 1987 to December 1990. No respiratory abnormalities were found at that time. In December 1990, the Veteran appeared before another PEB and was found to be unfit for further military duty as a result of his transverse myelitis. He was permanently retired at that time.

The first pertinent post-service treatment record is dated September 1993. The Veteran was given a VA general medical examination (GME) at that time and provided a medical history in which he admitted having asthma as a child. For the past year, the Veteran also reported having recurrent wheezing and productive cough. He was treated by a private physician and diagnosed as having asthmatic bronchitis. At the time of the examination, the Veteran used a Ventolin inhaler.

In March 2003, the Veteran also underwent a series of VA C&P examinations in connection with the numerous claims. The Veteran stated at that time that he had childhood asthma, which resolved for a period of time and then resurfaced. The Veteran indicated that he used an Albuterol inhaler (i.e., two puffs, four times per day, as needed) for shortness of breath. The Veteran's lungs were clear with good, symmetrical ventilation. No wheezes, rhonchi, or rales were noted. The impression was bronchial asthma. The Veteran stated that he used a Bi-Pap machine while sleeping. The impression was sleep apnea. After reviewing Harrison's Principles of Internal Medicine, the examiner concluded that there was no relationship between the Veteran's Behcet's syndrome and his asthma.

Associated with the claims file is a private opinion dated May 2004 from D. Hammoudi, M.D. Dr. Hammoudi reviewed medical records for the period beginning in 1997 and concluded that the Veteran's Behcet's syndrome was the "primary factor" for his asthma. Similarly, in an opinion dated May 2004, C. Bash, M.D. concluded that the Veteran's asthma was "likely" secondary to the Veteran's gastroesophageal reflux disease (GERD). Dr. Bash cited to medical literature (i.e., Theodoropoulos, 2002) in support of this contention. It is noted that the Veteran's hiatal hernia with GERD was service-connected as part of the 100 percent rating assigned for Behcet's syndrome. See January 2003 rating decision (granting service connection for hiatal hernia with GERD).

The Veteran was also afforded a series of VA C&P examinations in March and April of 2005 in connection with numerous claims. The Veteran indicated at the time of the respiratory examination that he was diagnosed as having asthma approximately five to ten years ago. The Veteran specifically denied having asthma as a child. PFTs administered at that time were interpreted to show a mild obstructive disease with no evidence of reversibility. The Veteran also reported wheezing, shortness of breath, and coughing. The Veteran stated that he "wore oxygen at night" and was diagnosed with a respiratory condition in 1992. The impression was asthma and sleep apnea. Based on a "literature search," the examiner concluded that it was "less likely than not" that the Veteran's asthma was secondary to his Behcet's syndrome. Rather, the examiner opined that it was "more likely than not" that the Veteran's asthma was exacerbated by his GERD.

In November 2008, VA requested numerous expert VHA medical opinions from VA physicians in connection with the Veteran's claim. These physicians reviewed the claims file and conducted medical literature searches prior to rendering these opinions.

A VA pulmonologist stated that the Veteran's asthma existed prior to service because it was noted on his enlistment examination. The pulmonologist also pointed out that the Veteran admitted to having childhood asthma in at least two subsequent examinations. The pulmonologist further opined that there was no evidence that the Veteran's asthma was made worse by his period of active service. In support of this contention, the pulmonologist indicated that an April 2005 spirometry test was normal. Similarly, a VA chief rheumatologist indicated that is was "highly unlikely" that the Veteran's asthma was the result of his service-connected Behcet's syndrome given the absence of medical literature linking asthma to Behcet's syndrome. The chief rheumatologist further stated that it was "highly unlikely" that the asthma was permanently aggravated or worsened by the Behcet's syndrome. The Board notes that the presumption of soundness applies in this case and it has not been rebutted based on the evidence of record. With regard to the issue of whether the Veteran's asthma existed prior to service, the Board finds that the totality of the medical evidence does not constitute clear and unmistakable evidence of such a conclusion. The Board notes that the November 2008 VA pulmonologist opined that the Veteran's asthma existed prior to service because it was noted on his enlistment examination. However, as discussed above, the fact that the history of a condition is "noted" upon enlistment, without supporting medical evidence, is insufficient to rebut the presumption of soundness. See Crowe, supra. The Veteran also provided conflicting reports about the alleged date of onset of his asthma. Since the presumption of soundness applies in this case, the Board will proceed to evaluate the Veteran's claim on direct and secondary bases.

Given the evidence of record, the Board finds that the preponderance of the evidence is against a finding of service connection for asthma on either a direct or secondary basis. The Veteran's STRs note a history of asthma, but he was neither diagnosed with nor treated for asthma in service. The first pertinent post-service treatment note documenting asthma is dated many years after discharge from service. The Federal Circuit has determined that a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. Maxson, supra. In this case, the lapse of years between service and the first evidence of asthma is evidence against the Veteran's claim. Furthermore, although the Veteran had diagnosed asthma during the pendency of this claim, there is no competent, probative medical evidence of record linking this disability to the Veteran's period of active service on a direct basis.

The Court has in the past held that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Layno and Buchanan, supra. However, the Court has also held that lay persons, such as the Veteran, are not qualified to offer an opinion that requires medical knowledge, such as a diagnosis or an opinion as to the cause of a disability that may be related to service. Espiritu and Jandreau, supra. Here, the Veteran is capable of observing symptoms such as wheezing or shortness of breath, but he is not competent (i.e., professionally qualified) to offer an opinion as to the cause of his asthma.

In view of the absence of abnormal findings in service and the first suggestion of pertinent disability many years after service, relating the Veteran's asthma to service on a direct basis would certainly be speculative. However, service connection may not be based on a resort to pure speculation or even remote possibility. See 38 C.F.R. § 3.102. As previously stated, entitlement to direct service connection requires a finding that there is a current disability that has a relationship to an in-service injury or disease. In this case, there is competent medical evidence showing a diagnosis of asthma, but there is no competent, probative medical evidence to link this disease, which occurred many years after discharge from service, to the Veteran's period of active service. Accordingly, the Board concludes that the Veteran's claim for service connection must be denied on a direct basis.

While the Veteran is not entitled to service connection for asthma on a direct basis, the Board must examine his claim of service connection for asthma on a secondary basis. In particular, the Veteran contends that his asthma is secondary to the service-connected Behcet's syndrome.

In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the Veteran.

Here, the competent, probative evidence of record enables a finding that the Veteran's currently diagnosed asthma is caused by his service-connected Behcet's syndrome because the medical evidence is in relative equipoise.

A careful review of the evidence of record revealed conflicting medical opinions regarding the relationship between the Veteran's asthma and his service-connected Behcet's syndrome. For instance, private medical opinions dated May 2004 from Drs. Hammoudi and Bash concluded that there was a relationship between the Veteran's service- connected Behcet's syndrome and his asthma. In reaching this conclusion, Drs. Hammoudi and Bash reviewed the Veteran's "medical records" and cited to specific medical literature. On the other hand, VA medical opinions dated March 2003, April 2005, and November 2008 found essentially no relationship between the Veteran's service-connected Behcet's syndrome and his asthma. In reaching this conclusion, the VA examiners reviewed the Veteran's claims file and cited to specific medical literature.

Where, as here, there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the Veteran. Thus, resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran is entitled to service connection for asthma on a secondary basis. Accordingly, service connection for asthma is granted subject to the law and regulations governing payment of monetary benefits.

III. Shingles

STRs associated with the Veteran's claims file showed that he was afforded a clinical evaluation and physical examination in January 1986 prior to entering service. No skin or lymphatic abnormalities were noted on the clinical evaluation. The Veteran described his health as "good," and provided a medical history in which he specifically denied ever having skin diseases.

The Veteran was subsequently diagnosed with and treated for transverse myelitis in May 1986. Shortly thereafter, the Veteran appeared before a Physical Evaluation Board (PEB). The Veteran was given a clinical evaluation and physical examination at that time, which was negative for any skin or lymphatic abnormalities. He was placed on the temporary disability retirement list (TDRL). The Board notes that the Veteran was afforded multiple TDRL examinations during the period November 1987 to December 1990. No skin or lymphatic abnormalities were found at that time. In December 1990, the Veteran appeared before another PEB and was found to be unfit for further military duty as a result of his transverse myelitis. He was permanently retired at that time.

The first pertinent post-service treatment note is dated February 2003, nearly 17 years after discharge from service. The Veteran was treated at a VA medical facility at that time for shingles.

The Veteran was afforded a VA C&P examination in connection with the current claim in March 2003. The examiner reviewed the Veteran's claims file and noted that he was diagnosed with and treated for Behcet's syndrome. The examiner noted that the Veteran had a variety of skin diseases, including oral and genital ulcerations as a result of the Behcet's syndrome. The Veteran indicated that the onset of his shingles was December 2002. The impression was Behcet's syndrome with skin and mouth lesions, as well as shingles, among other conditions. After consulting Harrison's Principles of Internal Medicine, the examiner concluded that Behcet's syndrome was "self-limiting" and showed no relationship to shingles. Rather, the examiner noted that shingles was caused by the herpes zoster virus and the invasion of nerve endings.

Also associated with the Veteran's claims file is a private medical opinion dated May 2004 by D. Hammoudi, M.D. Dr. Hammoudi reviewed the Veteran's medical records for the period beginning in 1997 and concluded that the Veteran's Behcet's syndrome was the "primary factor" for his shingles.

The Veteran was also afforded another VA C&P examination in connection with this claim in March 2005. The examiner noted that the Veteran's past medical history was significant for both Behcet's syndrome and shingles. The Veteran's Behcet's syndrome was characterized by oral and genital ulcerations as well as folliculitis of the skin. The examiner noted that the Veteran took Gabapentin for pain secondary to his shingles. Upon physical examination, the examiner observed no evidence of active shingles-related lesions or scars. The impression was history of shingles, among other conditions. The examiner further opined:

In my requested medical opinion, this claimant's above mentioned dermatological manifestations are related to his Behget's syndrome except the shingles. In my requested medical opinion the shingles are caused by the herpes infection and they are not related to the Behget's syndrome. He has no acute herpetic lesions anywhere on his body at present.

The Veteran also submitted numerous articles and abstracts that described Behcet's syndrome and the effects of this condition. These articles and abstracts were reviewed and associated with the claims file.

This evidence, however, does not have bearing on the issue on appeal. See 38 C.F.R. § 20.1304(c). As noted above, these articles are too general in nature to provide, alone, the necessary evidence to show that the Veteran's shingles were related to his period of active service either on a direct or secondary basis. See Sacks, supra. The medical treatise, textbook, or article must provide more than speculative, generic statements not relevant to the Veteran's claim but must discuss generic relationships with a degree of certainty for the facts of a specific case. See Wallin, supra. Here, these articles do not address the facts of the Veteran's specific case. Thus, the Board concludes that these articles do not show that the Veteran's shingles were related to his period of active service either on a direct or secondary basis.

Given the evidence of record, the Board finds that the preponderance of the evidence is against a finding of service connection for shingles on either a direct or secondary basis. The Veteran's STRs were negative for a diagnosis of or treatment for shingles. The earliest post-service evidence of shingles is dated February 2003, many years after discharge from service. The Federal Circuit has determined that a significant lapse in time between service and post- service medical treatment may be considered as part of the analysis of a service connection claim. Maxson, supra. In this case, the lapse of almost two decades between service and the first evidence of shingles is evidence against the Veteran's claim. Furthermore, although the Veteran had shingles during the pendency of this claim, there is no competent, probative medical evidence of record linking this disability to the Veteran's period of active service on a direct or secondary basis.

The Court has in the past held that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Layno and Buchanan, supra. However, the Court has also held that lay persons, such as the Veteran, are not qualified to offer an opinion that requires medical knowledge, such as a diagnosis or an opinion as to the cause of a disability that may be related to service. Espiritu and Jandreau, supra. Here, the Veteran is capable of observing symptoms such as skin lesions, but he is not competent (i.e., professionally qualified) to offer an opinion as to the cause of his shingles.

In view of the absence of abnormal findings in service and the first suggestion of pertinent disability many years after service, relating the Veteran's shingles to service on a direct basis would certainly be speculative. However, service connection may not be based on a resort to pure speculation or even remote possibility. See 38 C.F.R. § 3.102. As previously stated, entitlement to direct service connection requires a finding that there is a current disability that has a relationship to an in-service injury or disease. In this case, there is competent medical evidence showing a diagnosis of shingles, but there is no competent, probative medical evidence to link this disease, which occurred many years after discharge from service, to the Veteran's period of active service. Accordingly, the Board concludes that the Veteran's claim for service connection must be denied on a direct basis.

While the Veteran is not entitled to service connection for shingles on a direct basis, the Board must examine his claim of service connection for shingles on a secondary basis. In particular, the Veteran contends that his shingles are secondary to the service-connected Behcet's syndrome.

The Board notes that there is conflicting evidence of record concerning the issue of secondary service connection. While it may not reject a favorable medical opinion based on its own unsubstantiated medical conclusions, see Obert v. Brown, 5 Vet. App. 30, 33 (1993), the Board does have the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In evaluating the probative value of competent medical evidence, the Court has stated, in pertinent part:

The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator . . . .

Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). A physician's access to the claims file and the thoroughness and detail of the opinion are important factors in assessing the probative value of a medical opinion. Prejean v. West, 13 Vet. 444, 448-499 (2000).

The Veteran was afforded VA examinations in March 2003 and March 2005 in connection with this claim and indicated during the March 2003 VA examination that the onset of his shingles was December 2002. After reviewing the Veteran's claims file and consulting Harrison's Principles of Internal Medicine, the March 2003 VA examiner concluded that Behcet's syndrome was "self-limiting" and showed no relationship to shingles. Rather, the examiner noted that shingles was caused by the herpes zoster virus and the invasion of nerve endings.

Similarly, a different VA examiner diagnosed the Veteran as having a history of shingles, among other conditions, in March 2005. That examiner concluded that the Veteran's shingles were caused by a herpes infection and were not related to the service-connected Behcet's syndrome. In support of this conclusion, the examiner reviewed the Veteran's claims file and electronic records, and also noted that there was no evidence of acute herpetic lesions anywhere on the Veteran's body at the time of the examination.

By way of contrast, a private medical opinion dated May 2004 from Dr. Hammoudi concluded that the Veteran's Behcet's syndrome was the "primary factor" for the shingles. In reaching this conclusion, Dr. Hammoudi reviewed the Veteran's medical records for the period beginning in 1997 and stated that "[o]ver 4000 articles are available on the OVID or Medline, related to [the Veteran's] conditions and the complications that [he] is going through." However, Dr. Hammoudi failed to cite to specific evidence of record and did not identify the titles or authors of any of the claimed 4,000 scholarly articles purportedly available to support his conclusion that the Veteran's Behcet's syndrome was the "primary factor" for his shingles. The Board also observes that Dr. Hammoudi provided no more than a cursory statement with little additional commentary to support his contention.

In light of the medical opinions discussed above, the Board finds the VA medical opinions, especially the March 2003 opinion, to be highly probative evidence regarding the issue of secondary service connection. The March 2003 VA examiner reviewed the Veteran's claims file and identified a scholarly medical text to support the contention that the Veteran's Behcet's syndrome was a self-limiting disease with no link to shingles. Instead, the examiner indicated that shingles was caused by the herpes zoster virus and the invasion of nerve endings.

In summary, there is no evidence to show a diagnosis of or treatment for shingles in service. The Veteran's shingles were not diagnosed until many years after service. Moreover, the weight of the probative evidence is against finding that the Veteran's shingles are proximately due to, the result of, or aggravated by his service-connected Behcet's syndrome. Accordingly, the Veteran's claim is denied.

IV. Hyperlipidemia and Obesity

The Veteran also contends that his hyperlipidemia and obesity are related to service or are secondary to his service- connected Behcet's syndrome. In this case, the Board notes that while the Veteran's STRs are negative for any diagnosis of or treatment for hyperlipidemia or obesity, these conditions are well-documented in post-service medical evidence of record. See September 1993 VA GME Report and March 2003 VA C&P Examination Report. The Board is also aware that there is competent, probative medical evidence of record linking these conditions to the Veteran's service- connected Behcet's syndrome on a secondary basis. See March 2003 VA C&P Examination Report; May 2004 Report by D. Hammoudi, M.D.; and 2008 VHA Rheumatology Opinion.

However, neither obesity nor hyperlipidemia are conditions for which service connection can be granted. See generally 38 C.F.R. Part 4 (VA Schedule for Rating Disabilities). Under applicable VA regulations, the term "disability" refers to the average impairment in earning capacity resulting from diseases or injuries encountered as a result of or incident to military service. 38 C.F.R. § 4.1; See also Allen, 7 Vet. App. at 448.

"Hyperlipidemia" is defined as "a general term for elevated concentrations of any or all of the lipids in the plasma, such as hypertriglyceridemia, hypercholesterolemia, and so on." Dorland's Illustrated Medical Dictionary 883 (30th ed. 2003). VA has in the past determined that hyperlipidemia is a test result, and is not, in and of itself, a disability for which compensation is warranted. See 61 Fed. Reg. 20440, 20445 (May 7, 1996).

Similarly, VA's rating schedule does not contemplate a separate disability rating for obesity or hyperlipidemia and there exists no statutory or legal guidance to allow for such a consideration. In this case, obesity is as an underlying symptom of a ratable disease or injury.

For instance, the Veteran's diagnosis of and treatment for obesity is well-documented, particularly in the context of his treatment for hypertension, sleep apnea, and diabetes mellitus, or as an unfortunate side-effect of the corticosteroids used to manage the Veteran's Behcet's syndrome. See November 2008 VHA opinions. In this case, the Board has already awarded service connection for hypertension, sleep apnea, diabetes mellitus, and asthma, to include as secondary to the service-connected Behcet's syndrome.

Accordingly, service connection for hyperlipidemia or obesity on either a direct or secondary basis is not warranted. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518 (1996).

Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The Board further observes that during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.

With regard to the Veteran's claims of entitlement to service connection for hypertension, sleep apnea, diabetes mellitus, and asthma, to include as secondary to service-connected Behcet's syndrome, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any errors were committed with respect to either the duty to notify or the duty to assist, such errors were harmless and will not be further discussed.

With regard to the Veteran's claim of entitlement to service connection for hyperlipidemia, to include as secondary to service-connected Behcet's syndrome, the Board points out that this is not a condition for which VA compensation is payable. Consequently, VCAA notice is not required because the issues presented involve claims that cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit).

With regard to the Veteran's claims for service connection for shingles and obesity, to include as secondary to service- connected Behcet's syndrome, the duty to notify and assist was not satisfied prior to the initial unfavorable decision on the claim by the AOJ. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect).

The VCAA duty to notify was satisfied subsequent to the initial AOJ decision by way of a letter sent to the Veteran in April 2005 that fully addressed the required notice elements. The letter informed the Veteran of what evidence was required to substantiate the claims for shingles and obesity on both direct and secondary bases and of the Veteran's and VA's respective duties for obtaining evidence. A March 2006 letter also informed the Veteran of the type of evidence necessary to establish a disability rating and an effective date for the disability on appeal.

Although these notice letters were not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case by way of supplemental statement of the case issued in April 2008 after the notice was provided. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication.

The Board also finds that all of the relevant facts have been properly developed, and that all available evidence necessary for an equitable resolution of the issues has been obtained. The Veteran's service treatment records have been obtained. The Veteran's post-service treatment records have been obtained. The Veteran was also afforded numerous VA examinations in conjunction with the current claims. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims. Therefore, no further assistance to the Veteran with the development of the evidence is required.

ORDER

Service connection for hypertension, as secondary to service- connected Behcet's syndrome, is granted, subject to the law and regulations governing the payment of monetary benefits.

Service connection for sleep apnea, as secondary to service- connected Behcet's syndrome, is granted, subject to the law and regulations governing the payment of monetary benefits.

Service connection for diabetes mellitus, as secondary to service-connected Behcet's syndrome, is granted, subject to the law and regulations governing the payment of monetary benefits.

Service connection for asthma, as secondary to service- connected Behcet's syndrome, is granted, subject to the law and regulations governing the payment of monetary benefits.

Service connection for shingles, to include as secondary to service-connected Behcet's syndrome, is denied.

Service connection for hyperlipidemia, to include as secondary to service-connected Behcet's syndrome, is denied.

Service connection for obesity, to include as secondary to service-connected Behcet's syndrome, is denied.




S.S. TOTH

Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

drbash@doctor.com

______________________

Craig N. Bash M.D., M.B.A.

Neuro-Radiologist and Associate Professor

Uniformed Services School of Medicine

NPI/UPIN-1225123318

4938 Hampden Lane
Bethesda, Md 20814

Cell/Text 240-506-1556
Fax 301-951-9106