Citation Nr: 1020745 Decision Date: 06/04/10 Archive Date: 06/10/10 DOCKET NO. 05-20 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for Churg-Strauss syndrome (claimed as a blood disorder), to include as secondary to service-connected asbestosis. REPRESENTATION Appellant represented by: VVNW and the Veterans Coalition ATTORNEY FOR THE BOARD J Fussell INTRODUCTION The Veteran served on active duty from January 1952 to December 1955. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of the New York, New York Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied entitlement to service connection for Churg-Strauss syndrome. An April 2007 Board decision found that the issue of entitlement to an initial disability rating for asbestosis in excess of 30 percent was not on appeal. That decision denied entitlement to service connection for asthma and remanded the issue of service connection for Churg-Strauss syndrome for appropriate notification requirements and for a VA examination. The Board again remanded the case in October 2008 for a medical opinion as to whether the claimed disorder was of service origin, particularly whether it was related to any inservice exposure to industrial solvents. The Board again remanded the claim in May 2009 for an opinion by a specialist. The case has now been returned for appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT Churg-Strauss syndrome is first documented after service; is unrelated to disease, injury, or event of service origin, to include inservice exposure to industrial solvents; and current Churg-Strauss syndrome is not caused or aggravated by service-connected asbestosis. CONCLUSION OF LAW Churg-Strauss syndrome was not incurred in or aggravated by active service and is not proximately due to or aggravated by service-connected asbestosis. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. The VCAA was enacted November 9, 2000, and, among other things, amended 38 U.S.C. § 5107 to eliminate the well-grounded claim requirement. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326) (2006). Duty to Notify When a complete or substantially complete application for benefits is received, VA will notify the claimant of: (1) any information and medical or lay evidence needed to substantiate the claim, and (2) what portion thereof VA will obtain, and (3) what portion the claimant is to provide (Type One, Type Two, and Type Three, respectively). 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b); see Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice was intended to be provided before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran was provided with VCAA compliant notice by RO letters dated in March 2003 and May 2007. The letters informed him of what evidence was required to substantiate the claim for service connection on the basis of direct inservice incurrence and as secondary to a serviced-connected disorder and, also, and of the appellant's and VA's respective duties for obtaining evidence. The May 2007 letter informed him of the principles governing the award of disability ratings and effective dates. Moreover, as the claim of service connection is denied, no disability rating and effective date will be assigned as a matter of law. Thus, there can be no possibility of any prejudice to the Veteran with respect to any defect in the VCAA notice required under Dingess, at 19 Vet. App. 473. See VAOPGCPREC 8-2003 (Dec. 22, 2003); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) and Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Duty to Assist As required by 38 U.S.C.A. § 5103A, VA has made reasonable efforts to identify and obtain relevant records in support of the claim. The Veteran's service treatment records have been obtained. He declined the opportunity to testify in support of his claim. His VA treatment records have also been obtained. Private clinical records pertaining to his postservice treatment for asthma are on file. Records from the Social Security Administration, concerning a claim for disability benefits, have been obtained. The case was remanded in April 2007 to provide the Veteran with VCAA compliant notice comporting with the holding in Dingess, 19 Vet. App. 473 (2006). This was done by RO letter of May 2007. The case was also remanded for a VA examination to obtain a nexus opinion as to the etiology of the claimed disorder. An April 2008 VA examination yielded an opinion that the claimed disorder was not related to the service- connected asbestosis. Because there was no opinion as to whether the claimed disorder was incurred due to inservice exposure to industrial solvents, the case remanded again in October 2008 for such an opinion. After a review of the records by a VA specialist in hematology and medical oncology, a review of the records by other specialists was recommended and, so, the case was again remanded for this purpose in May 2009. Thereafter, an additional medical opinion was obtained in January 2010 at which time a specialist stated that the question could not be resolved without a resort to mere speculation until such time as research studies were tested and developed the hypothesis of a favorable connection. In the recent decision in Jones v. Shinseki, 23 Vet. App. 382 (2010) it was noted that the holding of the Court in McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006), and the applicable statute 38 U.S.C. § 5107(b), required some assessment of probability, as opposed to a definitive statement of the cause of the disabilities. An examination is not inadequate merely because the examiner states he or she cannot reach a conclusion without resort to speculation. It would be inappropriate for VA to demand a conclusive opinion from a physician whose evaluation of the procurable and assembled information prevents the rendering of such an opinion, for example if it cannot be determined from current medical knowledge that a specific inservice injury or disease can possibly cause the claimed condition. It was further stated that when an examiner has done all that reasonably should be done to become informed about a case, and the inability to render a requested opinion is adequately explained by the examiner or otherwise apparent by virtue of VA's analysis of the evidence, there is nothing further to be obtained from that particular examiner. VA is not required to proceed through multiple iterations of repetitive medical examinations until it obtains a conclusive opinion or formally declares that further examinations would be futile. Here, because the recent opinion indicates that the state of knowledge does not allow for a definitive opinion, any further efforts to obtain a conclusive opinion would be futile. Substantial, rather than absolute or strict, remand compliance is the appropriate standard for determining remand compliance under Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999); D'Aries v. Peake, 22 Vet. App. 97 (2008). Here, there has been substantial compliance with the Board remands to obtain opinions which were requested, and a more definitive opinion as to a nexus as to certain questions was not possible given the state of knowledge concerning the matter in the medical field. Accordingly, there has been substantial compliance with all of the past Board remands. As there is no indication that the Veteran was unaware of what was needed for claim substantiation nor any indication of the existence of additional evidence for claim substantiation, the Board concludes that there has been full VCAA compliance. Background The record reflects that the Veteran served on a naval vessel from April 1952 to November 1955 as a Fireman and Machinist's Mate. At the time of a January 2003 VA examination the Veteran reported that from 1953 to 1955 he worked as a Machinist's Mate in the boiler room, and that his duty was to pack valves with asbestos powder. The January 2003 VA examiner opined, after reviewing the claims file, that it was as likely as not that asbestosis was acquired during service but that it was not as likely as not that the Veteran's asthma was related to his military service. The VA examiner noted that the Veteran's asthma did not appear until 1957 and that there was nothing in the claims file to suggest that asthma started while in service. The Veteran submitted evidence from the Johns Hopkins Vasculitis Center Website regarding Churg-Strauss syndrome, which indicates that environmental factors such as exposure to industrial solvents might play a role in susceptibility to Churg-Strauss syndrome, but that this was largely speculative. The Veteran's records were reviewed on VA examination in May 2008 at which time it was reported that the Veteran had been diagnosed with Churg-Strauss syndrome in 1998, at which time he had had a loss of appetite, weight loss, and flu-like symptoms. He had then been placed on steroids and Imuran but the latter was stopped after about a year, for immunosuppression. After an examination the diagnoses were Churg-Strauss syndrome, asbestosis, prostate cancer, and herniated disc with sciatica down the left leg. After a review of the claim file and medical literature, the examiner stated that he could not find that Churg-Strauss syndrome was secondary to asbestosis. As to aggravation, he could not make an opinion on whether Churg-Strauss syndrome was aggravated by the service-connected asbestosis because Churg- Strauss syndrome was a disease of unknown etiology and, so, an opinion could not be rendered without resorting to mere speculation. In November 2008, the Veteran's claims folder was reviewed by a VA specialist in hematology and medical oncology. It was noted that the Veteran had been diagnosed with Churg-Strauss syndrome and started on Imuran about 15 years ago but since then had been on Prednisone for controlling his symptoms. After a review of a June 2008 CT chest scan and a physical examination, it was stated that the exact etiology of Churg- Strauss syndrome, (allergic granulomatous and angiitis) was unknown. The examiner thought it was unlikely that it was caused by exposure to industrial solvents during service on a naval vessel form April 1952 to November 1955 or related to the Veteran's period of service in any way. However, it was recommended that there be an evaluation by Pulmonology, Allergy, Immunology or Rheumatology. Based on a medical article, the examiner further noted that Churg-Strauss syndrome was a rare form of systemic vasculitis occurring in those with asthma. The cause was unknown and little data was available regarding its pathogensis. The presence of marked tissue and blood eosinophilia, as well as secretory products of esoinophils in blood and tissues, implicated a pathogenic role of eosinophil granulocytes. Prolonged survival of eosinophils due to inhibition of "CD- 95 - mediated apoptosis" by soluble CD-95 seemed to contribute to eosinophilia in the disorder. Although the mechanisms involved in eosinophil-activation in the disorder had not been elucidated, recent data suggested a possible role of "T lymphocytes" secreting eosinophil-activating cytokines. The examiner's review of the medical article included the current insights into the pathogenesis of the disorder in light of its putative nature as a type 2 granulomatous disease. Recent clinical, experimental and epidemiological data regarding the possible role of inflammatory cells and their secondary products, anti- neutrophil cytoplasm antibodies (ANCA), epidemiologic factors and anti-asthma treatments were summarized. The records were reviewed in January 2010 by a VA rheumatologist. It was noted than an examination of the Veteran was not needed. The Veteran's inservice asbestosis exposure was noted as well as his 16 years history of asthma and allergic rhinitis. The Veteran's Churg-Strauss syndrome had been diagnosed due to symptoms of weight loss, rash, abdominal pain, stomach ulcers, left lower extremity neuropathy but without any biopsy. He was currently treated with Prednisone and Imuran with good control of his symptoms, although a recent CT scan had shown persistent pulmonary interstitial infiltrates and angiitis. The diagnoses were Churg-Strauss syndrome, allergic rhinitis, chronic persistent asthma, and mesothalioima from asbestosis exposure on shipboard duty in the 1950s. The specialist cited medical literature which stated that Churg-Strauss syndrome was a rare systemic small vessel necrotizing vasculitis whose main clinical characteristics were well known, as were its usual success phases, from allergic rhinitis to asthma and finally vasculitis. Conversely, the physiopathogenetic mechanisms were not completely elucidated and were clearly multiple. It was noted that the Veteran met four of six criteria for a diagnosis of Churg-Strauss syndrome; namely, asthma, peripheral eosinophila, pulmonary infiltrates, and mononeuritis multi-plex; however, he had never had a tissue diagnosis and his ANCA was negative. The specialist further stated that it was theoretically possible that chronic and prolonged activation of the inflammatory cascade, including interlukins, via heavy asbestos fiber exposure could play an etiologic role in the initiation and promotion of allergic granulomatous vasculitis (Churg-Strauss syndrome), predominantly involving the pulmonary vessels, as in this case. It was less likely that transient exposure to volatile industrial solvents would promote chronic/delayed activation of an eosinophil- predominant inflammatory cascade. Until such time as research studies tested and developed this hypothesis, the specialist could not resolve the issue of causality of asbestos and solvent exposure to the onset of the Churg- Strauss syndrome in this case without a resort to mere speculation. Principles of Service Connection 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. A showing of inservice chronic disease requires evidence of (1) a sufficient combination of manifestations for disease identification, and (2) sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." A showing of continuity of symptoms is not required when disease identity is established but is required when inservice chronicity is not adequately supported or when an inservice diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires that there be (1) medical evidence of a current disability, (2) medical or lay evidence of in-service incurrence or aggravation of an injury, and (3) medical evidence of a nexus between the claimed in-service injury and the present disability. Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007). If some of these elements cannot be established, a veteran can instead establish continuity of symptomatology. 38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). To establish continuity of symptomatology requires a show "(1) that a condition was 'noted' during service, (2) evidence of postservice continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the postservice symptomatology." Barr, 21 Vet. App. at 307. Service connection will be granted on a secondary basis for disability that is proximately due to or the result of, or permanently aggravated by, an already service-connected condition. 38 C.F.R. § 3.310(a) and (b). This requires (1) evidence of a current disability; (2) a service-connected disability; and (3) evidence establishing a nexus between the service-connected disability and the claimed disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2008); Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001); 38 C.F.R. § 3.102 (2009). If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Analysis The Veteran is service-connected for asbestosis, rated 30 percent disabling but service connection for asthma has been denied. The Board must assess the competency and credibility of lay statements regarding inservice or continuous postservice symptomatology. As to this, a layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998); see also 38 C.F.R. § 3.159(a)(1) and (2) defining, respectively, competent medical and lay evidence. Where the determinative issue involves causation or a diagnosis, there must be competent evidence and, generally, lay statements are not competent evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay evidence can be competent to establish a diagnosis when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), or (2) the layperson is reporting a contemporaneous medical diagnosis (but see Robinette v. Brown, 8 Vet. App. 69, 77 (1995) when the underlying medical nature of evidence has been significantly diluted, as in the connection between a lay account of past medical information, and filtered through layman's sensibilities, such evidence is too attenuated and inherently unreliable to constitute medical evidence) or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, information simply recorded by a medical examiner and unenhanced by any additional medical comment, and thus not adding any medico- evidentiary value to the lay history through medical expertise, does not constitute competent medical evidence. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). In the first circumstance, identification of a medical condition, there is a two-step analysis, the first is competence and the second is credibility. Robinson v. Shinseki, 2008-7096 (Fed. Cir. March 3, 2009) (not selected for publication); 312 Fed.Appx. 336, 2009 WL 524737 (C.A.Fed.). In the first step, competency of lay evidence, it must be determined whether the disability is simple and capable of lay observation, if so, then lay evidence thereof is not a medical determination requiring medical evidence; rather, it can be established by competent lay evidence. Jandreau, Id.; Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); see 38 C.F.R. § 3.159(a)(2). If not, then competent medical evidence is required. If lay evidence is competent, then the second step is to assess credibility by weighing the pertinent lay evidence against the other evidence-including inservice records documenting inservice injury or disability, if any. Robinson, Id. The credibility of lay statements may not be refuted solely by the absence of corroborating medical evidence, but this is a factor. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay evidence concerning continuity of symptoms after service, if credible, may be competent, regardless of the lack of contemporaneous medical evidence). Other factors are the lapse of time in recollecting events attested to, prior conflicting statements, consistency with other statements and evidence, internal consistency, facial plausibility, bias, self- interest, the earliest time at which corroborating lay or medical evidence is first shown, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). The Veteran is competent to attest to obvious and visible symptoms which he has experienced. However, with respect to any complaint of pain, particularly any first expressed many years after service discharge, as establishing continuity of symptomatology and, thus, a nexus between current Churg- Strauss syndrome and his military service, a layperson is competent to testify as to pain. Falzone v. Brown, 8 Vet. App. 398, 405 (1995). However, while competent to testify to the pain or other symptoms personally experienced during or after military service, a layperson is generally not competent to testify that what was experienced inservice caused disability which was not clinically shown to have manifested until years after service, particularly in light the absence of intervening symptoms. See Clyburn v. West, 12 Vet. App. 296, 301 (1999). A lay person is not qualified to render a medical opinion as to diagnosis or medical causation. Moray v. Brown, 5 Vet. App. 211, 214 (1993). A diagnosis requires the application of medical expertise to facts, including a description of history and symptoms. Clemons v. Shinseki, 23 Vet. App. 1, 4 - 5 (2009). Therefore, competent medical evidence is necessary to establish this nexus. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); see also Savage v. Gober, 10 Vet. App. 488 (1997) (where the disability is of the type as to which lay observation is not competent to identify its existence, medical evidence, and not simply a showing of continuity of symptoms, is needed to provide a nexus between the veteran's in-service symptoms and the currently diagnosed disabilities). This is particularly true in this case since the diagnosis of Churg-Strauss syndrome is dependent upon a complex of various symptoms and a progression of the symptomatology. As to the second and third circumstances, delineated in Jandreau, Id., when lay evidence may establish a diagnosis, the Veteran has not reported or testified that he was given a diagnosis during service of Churg-Strauss syndrome, or a diagnosis within one year of service discharge in 1955 of Churg-Strauss syndrome (the 2nd circumstance under Jandreau) nor has he described symptoms supported by a later diagnosis of inservice incurrence of Churg-Strauss syndrome, or manifestations within the first postservice year, by a medical professional (the 3rd circumstance under Jandreau). Here, there is no favorable medical opinion supporting any theory of causation that would provide a basis for granting service connection. The November 2008 VA medical opinion was that Churg-Strauss syndrome was unlikely to be due to inservice exposure to industrial solvents and even the 2010 VA medical opinion was that this was less than likely to be the case. As to any relationship between the claimed Churg-Strauss syndrome and the Veteran's service-connected asbestosis, the 2010 VA medical opinion stated that it was only theoretically possible that inservice asbestos exposure could have played an etiologic role in the initiation and promotion of Churg- Strauss syndrome. This theoretical possibility is no more than mere speculation and, so, does not support the claim. This is particularly true since the May 2008 VA medical opinion, rendered after a review of medical literature, found no support for concluding that Churg-Strauss syndrome was secondary to asbestosis. With respect to the question of whether the service-connected asbestosis aggravates the Churg-Strauss syndrome, the May 2008 VA medical opinion stated that the question could not be answered because Churg- Strauss syndrome was a disease of unknown etiology and, so, any opinion on this question would be no more than mere speculation. This comports with the 2010 VA medical opinion which, although it did not specifically address the question of secondary aggravation, noted the elusiveness of the pathology of Churg-Strauss syndrome and that opinion otherwise indicated that there might be no more than a theoretical connection between Churg-Strauss syndrome and asbestos exposure. However, to grant service connection there must be more than a mere theory, there must be a factual basis supporting the claim and such factual support is not present in this case. The Board must consider only independent medical evidence to support the findings rather than provide a medical judgment in the guise of a Board opinion. Colvin v. Derwinski, 1 Vet. App. 171, 172 (1991). Here, there is no favorable medical opinion as to any theory which would provide a basis for granting service connection for Churg-Strauss syndrome. Unfortunately, this rather rare disorder is of unknown etiology and so little studied by the medical community that its cause and progression are not understood. Thus, the Board concludes that the Veteran's current Churg- Strauss syndrome is not shown until many years after discharge from his military service in 1955, is not of service origin, and is not shown to be related to the Veteran's military service or to the service-connected asbestosis, to include not being aggravated by the service- connected asbestosis. Accordingly, service connection for Churg-Strauss syndrome is not warranted. Since, for these reasons, the preponderance of the evidence is against the claim, the benefit-of-the- doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for Churg-Strauss syndrome is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs