Citation Nr: 0712744 Decision Date: 04/30/07 Archive Date: 05/08/07 DOCKET NO. 03-11 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for sickle cell disease, diagnosed as hemoglobin SC disease. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and her father ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The veteran served on active duty from August 2000 to March 2001. This matter originally came to the Board of Veterans' Appeals (Board) from March and December 2002 rating decisions of the Columbia, South Carolina Department of Veterans Affairs (VA) Regional Office (RO). In October 2004, the Board denied the claim. In January 2006, the case was the subject of a Joint Motion for Remand by the parties to the United States Court of Appeals for Veterans Claims (Court). The Joint Motion vacated the October 2004 decision, and remanded the case so that the Board could consider certain VA General Counsel precedential opinions. In April 2006, the Board remanded the case to the RO to accomplish the above-mentioned ordered development; the Board also sought and obtained a VA medical opinion. FINDINGS OF FACT 1. Clear and unmistakable evidence demonstrates that the veteran was born with hemoglobin SC disease. 2. Clear and unmistakable evidence shows that neither hemoglobin SC disease nor sickle cell anemia were aggravated by service. 3. Clear and unmistakable evidence shows that the veteran's preexisting hemoglobin SC disease did not progress in severity during her military service. CONCLUSION OF LAW Sickle cell disease, diagnosed as hemoglobin SC disease, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1111, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.326 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., evidence of veteran status; existence of a current disability; evidence of a nexus between service and the disability; the degree of disability; and the effective date of any disability benefits. The veteran must also be notified to submit all evidence in her possession, what specific evidence she is to provide, and what evidence VA will attempt to obtain. VA thirdly has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record, and in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In this case, there is no issue as to providing an appropriate application form or completeness of the application. Written notice, in the form of an April 2003 statement of the case (SOC) and May 2006 VA correspondence, fulfills the provisions of 38 U.S.C.A. § 5103(a). Notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal was provided the veteran as part of the May 2006 correspondence. The claim was readjudicated in a December 2006 supplemental SOC (SSOC). The Board acknowledges that the notice required by 38 U.S.C.A. § 5103(a) must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. While VA failed to follow that sequence, any defect with respect to the timing of the VCAA notice requirement was harmless error. 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). Here, however, the above-mentioned notice instructed the appellant what she needed to show to entitlement to service connection, as well as her duty to submit all pertinent evidence in her possession. To this, in December 2006 the appellant informed VA that she had no additional evidence to submit. The content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a). The appellant was provided with every opportunity to submit evidence and argument in support of her claim and to respond to the VA notice. Therefore, the actions taken by VA have cured the error in the timing of notice. Further, the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of her claim. Finally, VA has secured all available pertinent evidence and conducted all appropriate development. Hence, VA has fulfilled its duties under the VCAA. To the extent that VA has failed to fulfill any duty to notify and assist the veteran, that error is harmless since there is no evidence the error reasonably affects the fairness of the adjudication. Thus any error in the timing was harmless, the appellant was not prejudiced, and the Board may proceed to decide this appeal. Simply put, there is no evidence any VA error in notifying the appellant that reasonably affects the fairness of this adjudication. Id. Factual Background The veteran's service medical records are negative for evidence of a sickle cell trait/condition at service entrance. Laboratory work done in February 2001 shows an elevated white blood count of 14.6, and lowered red blood and hemoglobin levels. Notably, however, neither sickle cell anemia nor hemoglobin SC disease was ever diagnosed inservice. The veteran was discharged in March 2001 for failing to meet physical fitness standards. Records from Greenville Hospital, dated in March 2001, one week subsequent to the veteran's separation from service, show her admission for severe lower abdominal and low back pain. Hemoglobin electrophoresis showed that she was having hemoglobin SC disease. It was noted that her family history was positive for sickle cell crisis. The attending physician noted there was no significant appreciation of sickle cells in a smear test. She was treated with pain medication, and red cells were transfused. At discharge she was educated on sickle cell hemoglobin SC disease and precautions to prevent crisis. A September 2001 VA examination report shows the veteran describing a crisis which led to hospitalization in March 2001. She reported that she had complained of some leg pain on active service and that she could not pass the physical training test. Clinical examination, including hemoglobin electrophoresis revealed hemoglobin SC disease. The examiner diagnosed hemoglobin SC disease and noted that it was generally a milder disease than sickle cell anemia (SS disease). He noted that at the time of examination she did not show any evidence of sequelae. She was mildly anemic. In January 2002, a VA hemic disorders specialist provided an opinion after reviewing the claims folder and examining the veteran. The RO requested a specific opinion as to whether or not the condition had its first manifestation while the veteran was on active duty or not. The reviewing physician noted that prior to service the veteran had not been very physically active, but that she had no problems during basic training. In advanced individual training (AIT) she complained of leg cramps. The examiner stated that her hemoglobin SC disease originated prior to birth. September 2001 X-ray examinations of the hips, femurs, and sacroiliac joints did not show residuals of bone infarcts, which can occur in hemoglobin SC disease. While hemoglobin SC disease was diagnosed, the examiner opined that after a review of the record he could not find any evidence of residuals or complications related to the disease. At a June 2004 videoconference hearing conducted by the undersigned the veteran stated that during AIT she experienced severe cramping in her legs, and was unable to pass her physical training runs. She reported for sick call on several occasions. She reportedly was given soft shoe profiles, light duty, and ibuprofen. She stated that she did not think her complaints were taken seriously or investigated properly. Following separation she experienced a sickle cell crisis requiring treatment at Greenville Hospital. She stated that since that time she has sought treatment at the emergency room there when she has symptoms of crisis. In November 2006 the veteran's claims folder, to include the medical evidence of record, was reviewed by a VA hematologist. The physician reiterated the veteran's medical history of having her first sickle cell crisis shortly after being discharged from the military, and of subsequently being diagnosed with hemoglobin SC disease. The veteran stated that she had no idea prior to this episode that she had a hematological disorder. The physician noted that the veteran's medical history indicated that she had denied having had a sickle cell crisis while in the military. It was also reported that the veteran had claimed that musculoskeletal pain experienced during her active duty was a symptom of her sickle cell anemia and that her condition was exacerbated during her military career. The reviewing VA hematology specialist opined that the veteran was born with hemoglobin SC disease, and the fact that her first sickle cell crisis occurred one week following her service discharge was coincidental and was not related to her military service. The physician added that there was nothing in the veteran's medical records to show that she had an exacerbation of her symptoms of her hemoglobin SC disease while in the military. The physician added that the inservice musculoskeletal pain reported by the veteran was not unique to hemoglobin SC disease, but rather a common complaint of service members going through physical training. The reviewing physician concluded that it was less likely than not that the veteran's hemoglobin SC disease was first manifested during her period of military service. Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in or aggravated by service. 38 C.F.R. § 3.303. 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 the 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. Hickson v. West, 12 Vet. App. 247, 253 (1999). Congenital or developmental defects are not diseases or injuries within the meaning of the applicable statutes. 38 C.F.R. § 3.303(c). Every veteran shall be taken to have been in sound condition when entering service, except as to defects, infirmities, or disorders noted at the time of examination on entering service, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entering service and was not aggravated by such service. 38 U.S.C.A. § 1111. Under 38 C.F.R. § 3.304(b), the regulation implementing 38 U.S.C.A. § 1111, provides that the veteran shall be taken to have been in sound condition on entering service except as to any disabilities noted at that time, or where clear and unmistakable evidence demonstrates that the injury or disease existed prior to service. This implementing regulation eliminates the third prong of the test regarding the presumption of soundness, that being whether clear and unmistakable evidence demonstrates that the injury or disease was not aggravated during service. VA's General Counsel has determined that congenital or developmental defects are normally static conditions which, unlike diseases, are incapable of improvement or deterioration. VAOPGCPREC 67-90 (July 18, 1990). In this regard, service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990). Moreover, diseases of hereditary origin can be considered incurred, rather than aggravated, in service "if their symptomatology did not manifest itself until after entry on duty." VAOPGCPREC 67-90 (July 18, 1990). However, with regard to congenital or developmental defects, service connection may not be granted for a defect, but service connection may be granted for a disability which is shown by the evidence to have resulted from a defect which was subject to a superimposed disease or injury during service. VAOPGCPREC 82-90; 38 C.F.R. § 4.127. VA's General Counsel has also determined that 38 C.F.R. § 3.304(b) is invalid to the extent that the regulation states that the presumption of sound condition may be rebutted solely by clear and unmistakable evidence that a disease or injury existed prior to service. See VAOPGCPREC 3-03; 69 Fed. Reg. 25178 (2004). In order to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, the burden is on VA to show by clear and unmistakable evidence that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The Board will, therefore, follow the statute in determining whether the presumption of soundness applies and whether, if applicable, the presumption has been successfully rebutted by the evidence. In determining whether the presumption of soundness applies and, if so, whether it has been successfully rebutted, the opinion of the General Counsel left intact the remaining provisions of 38 C.F.R. § 3.304(b) pertaining to that issue. According to the regulation, only such conditions as are recorded in examination reports are to be considered as noted. The veteran's reported history of the pre-service existence of a disease or injury does not constitute notation of such disease or injury, but such a statement is considered with all other evidence in determining if the disease or injury pre-existed service. See Harris v. West, 11 Vet. App. 456 (1998), aff'd 203 F.3d 1347 (Fed. Cir. 2000). Determinations regarding the pre-existence of a disability should be based on medical judgment derived from accepted medical principles, and the clinical factors pertinent to the basic character, origin, and development of such injury or disease. History conforming to accepted medical principles should be given due consideration, in conjunction with basic clinical data, and be accorded probative value consistent with accepted medical and evidentiary principles regarding incurrence, symptoms, and course of the injury or disease, together with all other lay and medical evidence concerning the inception, development, and manifestations of the impairment. 38 C.F.R. § 3.304(b). A pre-existing 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. Identical language is included in 38 C.F.R. § 3.306(a), the regulation implementing 38 U.S.C.A. § 1153. In VAOPGCPREC 3-03 the General Counsel also determined, however, that 38 U.S.C.A. § 1153, and 38 C.F.R. § 3.306, are not applicable in determining whether the presumption of soundness under 38 U.S.C.A. § 1111 has been rebutted: "The requirement of an increase in disability in 38 C.F.R. § 3.306(b) applies only to determinations concerning the presumption of aggravation under 38 U.S.C. § 1153 and does not apply to determinations concerning the presumption of sound condition under 38 U.S.C. § 1111." VAOPGCPREC 3-03, page 11. This determination by the General Counsel is binding on the Board. 38 U.S.C.A. § 7104(c). Although VA's General Counsel has determined that the definition of "aggravation" located in 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306 does not apply in determining whether the presumption of soundness has been rebutted, the statute and regulation do not otherwise provide any definition of "aggravation" to be applied in making that determination. The word "aggravate" is defined in the dictionary as "to make worse." Webster's New Riverside University Dictionary 86 (2nd Ed. 1984). After determining whether the presumption of soundness has been rebutted the Board will consider whether the veteran's sickle cell and hemoglobin SC disorder was "made worse" by her military service. Analysis The competent evidence addressing whether the appellant's disorder existed prior to enlistment includes those medical findings set out as part of the January 2002 VA hemic disorders examination. That physician opined that the appellant's disability existed prior to her birth. That is, her basic genetic makeup, which was sealed the moment that she was conceived, includes the genetic code for sickle cell and hemoglobin SC disease. Another VA physician in November 2006 supplied a similar opinion, indicating that the veteran was born with hemoglobin SC disease. These findings clearly and unmistakably rebut the presumption of soundness, and they are not rebutted by any competent evidence to the contrary. In this respect the Board notes that the appellant is not competent to offer a medical opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). As previously stated, the veteran contends that her hemoglobin SC manifested itself during service by pains which prevented her from passing her PT test. Service medical records do not show these complaints, however, the Board finds her testimony credible regarding them. Service personnel records show she was placed in a remedial PT program in November 2000 and failed to improve significantly. Notably, however, neither sickle cell nor hemoglobin SC disease were shown inservice, and neither disorder required medical care in-service. In January 2002, the RO obtained a medical opinion from a VA physician regarding the pre-existence and aggravation of the claimed sickle cell/hemoglobin SC disease. That VA physician determined, based on review of the medical evidence in the veteran's claims file, that the disorder existed before birth and that medical studies had shown no evidence of residuals or complications from the disease. Further, following review of the medical record in November 2006 a VA hemic disorders specialist opined that there was nothing in the medical record to show that the veteran had experienced an exacerbation or symptoms of her hemoglobin SC disease while in the military. The physician added that it was less likely than not that the veteran's hemoglobin SC disease was first manifested during her period of military service. There is no medical evidence of record showing that the preexisting hemoglobin SC disease was made worse during or as a result of military service. In fact, the November 2006 VA medical opinion specifically indicated that such a worsening did not occur; the physician opined that the veteran had neither "exacerbation or symptoms" of her hemoglobin SC disease during her military service. The veteran's assertions that the sickle cell anemia/hemoglobin SC disease were aggravated during service, and resulted in the development of the crisis for which she was hospitalized in March 2001, are not probative because she is not competent to provide evidence of such. Such an assessment requires medical knowledge that she does not possess. See Routen v. Brown, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 525 U.S. 962 (1998) (although the veteran is competent to provide evidence of observable symptomatology, a statement that a pre-existing disorder worsened in service is not probative because the appellant is not competent to provide such evidence). For that reason the Board finds that the probative evidence clearly and unmistakably demonstrates that sickle cell anemia/hemoglobin SC disease was not aggravated during service. The evidence clearly and unmistakably shows that the hemoglobin SC preexisted the veteran's entrance on active duty. The evidence also clearly and unmistakably indicates that the disease was not aggravated by service. The presumption of sound condition on entering service is rebutted. The probative medical evidence also clearly and unmistakably shows that the veteran's preexisting hemoglobin SC disease did not progress in any manner during her military service (see VAOPGCPREC 67-90), nor was the disorder incurred or aggravated by her military service (see VAOPGCPREC 82- 90). Therefore, the preponderance of the evidence is against the claim of entitlement to service connection. The benefit sought on appeal is denied. ORDER Entitlement to service connection for sickle cell disease, diagnosed as hemoglobin SC disease, is denied ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs