Citation Nr: 0728844 Decision Date: 09/13/07 Archive Date: 09/25/07 DOCKET NO. 04-12 583 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a sickle cell disease, to include sickle cell anemia. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active duty from April 1974 to April 1976. She also performed service with the Reserve. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2002 rating decision of the Columbia Regional Office (RO) of the United States Department of Veterans Affairs (VA) which denied entitlement to service connection for sickle cell anemia. In August 2005, the case was remanded for further development. FINDINGS OF FACT 1. Clear and unmistakable evidence demonstrates that the veteran was born with hemoglobin sickle cell disease. 2. Clear and unmistakable evidence shows that neither hemoglobin sickle cell disease nor sickle cell anemia were aggravated by service. 3. Clear and unmistakable evidence shows that the veteran's preexisting hemoglobin sickle cell disease did not progress in severity during her military service. CONCLUSION OF LAW Sickle cell disease, diagnosed as hemoglobin sickle cell disease, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1111, 1131, 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 June 2002 and January 2006 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 June 2007 supplemental statement of the case. 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. 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. In this regard, the Board acknowledges that the August 2005 Board remand ordered that the veteran be examined, and the record shows that an examination was not conducted. On review of the record the Board finds this failure to be harmless. In this regard, there is no competent evidence linking the claimed disorder to service, and in light of the fact that the preponderance of the available competent evidence shows that the appellant's disability is a congenital defect, the Board cannot conceive of any information that would be secured by an examination that has not already been provided by the VA opinions and private medical evidence of record. 38 C.F.R. § 3.303(c) (2006). Hence, VA has fulfilled its duties under the VCAA. To the extent that VA 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 entrance examination report is not available. In February 1975, the appellant was noted to have an eight year history of well compensated sickle cell disease. The disorder was noted to be inactive save for a recent bout of abdominal pain. A January 1980 physical examination noted a history of a four day hospitalization in September 1979 for hemoglobin sickle cell disease, and right leg pain secondary to sickle cell disease. On examination no pertinent disability was diagnosed. In July 1984, the veteran was noted to have first been diagnosed with hemoglobin sickle cell disease in 1967. Sickle cell crises were noted to follow strenuous activity. Outpatient treatment records pertaining to care provided by Robert M. Silgals, M.D., show that the veteran was treated for hemoglobin sickle cell disease between October 1999 and December 2005. While these records show that the disorder was productive of severe pain, and that the appellant underwent a hip replacement, the records do not reveal any opinion linking either sickle cell disease or sickle cell anemia to service. In January 2004, Dr. Silgals wrote that the veteran was under his care for sickle cell disease. He stated that sickle cell disease was a different than sickle cell anemia in that anemia tended to be much milder and hence a diagnosis was not made until a person was of a much later age. The veteran testified before the undersigned at a June 2005 video conference hearing. She reported a history of sickle cell disease prior to active duty, but not having any disabling problems until active duty. She then discussed how the disorder affected her. She stated that she had been employed as a nurse. In July 2005, Dr. Silgals wrote that the veteran was under his care for hemoglobin sickle cell disease. He wrote that hemoglobin sickle cell disease was a sickling disease and a close relative to sickle cell anemia. The disease was opined to be closely associated with chronic anemia, and particularly associated with progressive bone and joint destruction. Dr. Silgals observed that the appellant reported problems during her military service with deep venous thrombosis, headaches and gallbladder disease which may have been related to hemoglobin sickle cell disease. Dr. Silgals acknowledged that he did not have documentation from the appellant's old military records. Dr. Silgals did not offer an opinion addressing the etiology of the appellant's disability. In October 2006, a VA physician reviewed the claims folder. The reviewer found that the veteran was born with hemoglobin sickle cell disease, and that she was diagnosed with the disorder in 1968, six years prior to service. The appellant was noted to have had some sickle cell crises prior to service, and again in her 40's, but none during service. The reviewing physician opined that the veteran's disorder was not worsened by service, and that hemoglobin sickle cell disease is a genetic and congenital abnormality or defect that was incapable of deterioration or improvement. The impression was hemoglobin sickle cell disease not secondary to, related to, or aggravated by service. In May 2007, a VA physician reviewed the claims folder. The physician found that the veteran had been diagnosed with hemoglobin sickle cell disease prior to service, and that she did not have any significant problems with the disorder in- service. The physician opined that hemoglobin sickle cell disease is a genetic problem; a congenital abnormality or defect which a person is born with. The physician opined that a person cannot develop hemoglobin sickle cell disease after birth. 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, 1131. 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 hemoglobin sickle cell disease to include sickle cell anemia was "made worse" by her military service. Analysis The evidence addressing whether the appellant's disorder existed prior to enlistment includes those statements made by the veteran during service, as well as the medical findings set out as part of the October 2006 and February 2007 VA medical opinions. Uniformly, both the service medical records and the above cited VA opinions provide how clear and unmistakable evidence 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 hemoglobin sickle cell disease, to include sickle cell anemia. These findings clearly and unmistakably rebut the presumption of soundness, and they are not rebutted by any competent evidence to the contrary. While the Board acknowledges the fact that the appellant is a trained nurse, there is no evidence that she has specialized training in either hematology or genetics to offer a competent opinion on this matter. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Black v. Brown, 10 Vet. App. 279, 284 (1997); reconsideration denied, 11 Vet. App. 15 (1998); appeal dismissed, 185 F.3d 884 (Fed. Cir. 1999) Hence, her opinions as to the etiology of her illness are not competent opinions. As previously stated, the veteran contends that her hemoglobin sickle cell disease was first manifested during service. Notably, however, the available record shows that hemoglobin sickle cell disease was not shown during her term of active duty, and there is no competent evidence that it was aggravated in service. In October 2006 and January 2007, the RO obtained medical opinions from VA physicians regarding the etiology of the claimed hemoglobin sickle cell disease. These physicians determined, based on review of the medical evidence in the veteran's claims file, that the disorder was a congenital defect and that medical studies revealed no link between the disorder and her military service. The evidence clearly and unmistakably shows that hemoglobin sickle cell disease preexisted the veteran's entrance on active duty. Further, the evidence clearly and unmistakably indicates that the disease was not aggravated by service. The presumption of sound condition on entering service is rebutted. Finally, the probative medical evidence clearly and unmistakably shows that preexisting hemoglobin sickle cell disease did not progress in any manner during her military service nor was the disorder incurred or aggravated by her military service. VAOPGCPREC 67-90 and 82- 90. Therefore, the preponderance of the evidence is against the claim of entitlement to service connection. The claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs