Citation Nr: 0713597 Decision Date: 05/08/07 Archive Date: 05/17/07 DOCKET NO. 03-04 993 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to service connection for claimed systemic lupus erythematosus (lupus) and fibromyalgia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The veteran served on active military duty from June to November 1970. This case was remanded in August 2006 by the Board of Veterans' Appeals (Board) to the RO for additional action. FINDINGS OF FACT 1. The veteran is not shown to have manifested complaints or findings referable to lupus or fibromyalgia in service or for many years thereafter. 2. Neither the currently demonstrated lupus nor the fibromyalgia is shown to be due to the episode of mononucleosis treated in service or any other event or incident of the veteran's period of active service. CONCLUSION OF LAW The veteran does not have a disability manifested by lupus or fibromyalgia due to disease or injury that was incurred in or aggravated by service; nor may lupus be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1116, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initial Considerations The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the issue decided hereinbelow. In July 2002, the RO sent the veteran a letter, with a copy to her representative, in which she was informed of the requirements needed to establish entitlement to service connection. In accordance with the requirements of VCAA, the letter informed the veteran what evidence and information she was responsible for and the evidence that was considered VA's responsibility. The letter explained that VA would make reasonable efforts to help her get evidence such as medical records, employment records, etc., but that she was responsible for providing sufficient information to VA to identify the custodian of any records. Additional private medical evidence was received from the veteran. There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file. The duty to notify the veteran of necessary evidence and of responsibility for obtaining or presenting that evidence has been fulfilled. In the above-noted letter, the veteran was also advised to submit additional evidence to the RO, and the Board finds that this instruction is consistent with the requirement of 38 C.F.R. § 3.159(b)(1) that VA request that a claimant provide any evidence in her possession that pertains to a claim. The Board also notes that the veteran was informed by VA in September 2006 of the applicable regulations on disability ratings and effective dates if her claim was granted, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. The Board notes that a Veterans Health Administration (VHA) nexus opinion was obtained in June 2006. The Board concludes that all available evidence that is pertinent to the claim decided herein has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issue. The veteran has been given ample opportunity to present evidence and argument in support of her claim. The Board additionally finds that VA has complied with general due process considerations. See 38 C.F.R. § 3.103 (2006). Finally, to the extent that VA has failed to fulfill any duty to notify and assist the veteran, the Board finds any defect to be harmless. Of course, an error is not harmless when it "reasonably affect(s) the outcome of the case." ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed.Cir. 1998). In this case, however, as there is no evidence that any failure on the part of VA to further comply with VCAA reasonably affects the outcome of this case, the Board finds that any such failure is harmless. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Law And Regulations In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Moreover, in the case of lupus, service connection may be granted if either disorder is manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Analysis The veteran asserts that she developed lupus and fibromyalgia as a result of the mononucleosis she had in service, which included infection with the Epstein-Barr virus (EBV). According to the veteran's November 1970 discharge medical history report, she was hospitalized for two weeks for mononucleosis, with no complications or sequelae. Despite the veteran's assertions, no pertinent abnormality was shown in service or in postservice medical evidence until fibromyalgia was noted in September 1995, which was many years after service discharge. Lupus was initially noted in September 1997. With respect to a connection between either disability and service, the Board notes that there is no nexus opinion on file in support of the claim. The two opinions on file, dated in February 2004 and June 2006, do not support the conclusion of a causal connection between either lupus or fibromyalgia and service, including mononucleosis. After reviewing the claims file in February 2004, a VA Rheumatologist concluded that there was no reasonable basis to either conclude or disagree that the veteran's lupus and fibromyalgia were due to service. The Board requested an expert medical opinion from VHA in May 2006. According to a June 2006 opinion from the Chief of Rheumatology at a VA Medical Center, after review of the claims file, it was not as likely as not that the veteran's lupus and fibromyalgia were due to the episode of infectious mononucleosis she incurred in service. The conclusion reported in June 2006 was based on the fact that, because the causes of lupus and fibromyalgia were still currently unknown, it would be speculative to find a causal connection between an infection with mononucleosis with EBV and the development years later of lupus and its complications. The court has routinely held that speculative and inconclusive opinions cannot support a claim for service connection. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). See also Beausoleil v. Brown, 8 Vet. App. 459 (1996) (holding that a general and inconclusive statement about the possibility of a link was not sufficient); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (holding that there was a plausible basis for the Board's decision that a disability was not incurred in service where even the medical evidence favorable to the appellant's claim did little more than suggest the possibility that the veteran's illness might have been caused by his wartime radiation exposure); and Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (generally holding that medical opinions which are speculative, general or inconclusive in nature or which are not factually supported will not sustain a claim). Consequently, because there was no evidence of lupus or fibromyalgia in service or for many years after service discharge, and no nexus opinion in favor of the claim, the preponderance of the evidence is against the veteran's claim of service connection for lupus and fibromyalgia. With respect to the written statements by and on behalf of the veteran, including the 2006 statements from the veteran's family and friends, the Board would point out that it is now well established that laypersons without medical training are not competent to comment on medical matters such as diagnosis, date of onset or cause of a disability. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Consequently, these statements alone cannot be competent evidence to establish a nexus with service. The Board also has reviewed the medical information submitted by the veteran about lupus and fibromyalgia, including the article on the possible relationship between lupus and EBV. However, these excerpts are not specific to the veteran's case and, in content, only serve to present a hypothesis concerning a possible causal connection on link. Finally, in regard to the request that a nexus opinion be obtained from a source outside of VA, the Board notes that a basis for obtaining such additional opinion has not been presented in this case. As the preponderance of the evidence is against the claim for service connection for lupus and fibromyalgia, the doctrine of reasonable doubt is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, based on the current evidentiary record, service connection for lupus and fibromyalgia must be denied. ORDER Service connection for lupus and fibromyalgia is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs