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 CONCLUSIONSEstablishing 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.
