Citation Nr: 0004714 Decision Date: 02/23/00 Archive Date: 02/28/00 DOCKET NO. 94-20 800 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for a respiratory disorder. 2. Entitlement to service connection for an acquired psychiatric disorder. 3. Entitlement to service connection for residuals of an aspirin overdose. 4. Entitlement to service connection for bilateral hearing loss. 5. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Jeffrey E. McFadden, Attorney WITNESSES AT HEARING ON APPEAL Appellant and his wife. ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from January 1962 to January 1966. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of August 1992 by the Department of Veterans Affairs (VA) Des Moines, Iowa, Regional Office (RO). The Board remanded the case for additional development in November 1996. A hearing was held before the undersigned Member of the Board in October 1999. FINDINGS OF FACT 1. The veteran's pre-existing respiratory disorder increased in severity during service. 2. The veteran has not presented any competent evidence linking a current acquired psychiatric disorder to his period of service. 3. The veteran has not presented any evidence that he currently has any residuals of an aspirin overdose. 4. The veteran has not presented competent evidence showing that he has hearing loss of the left ear with the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz being 40 decibels or greater; or auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz being 26 decibels or greater; or speech recognition scores using the Maryland CNC Test being less than 94 percent. The veteran also has not presented any competent medical opinion linking his current hearing loss of the right ear to his period of service. 5. The veteran has not presented any competent evidence demonstrating a link between his current tinnitus and his period of service. CONCLUSIONS OF LAW 1. A respiratory disorder was aggravated by service. 38 U.S.C.A. § 5107 (West 1991). 2. The claim for service connection for an acquired psychiatric disorder is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 3. The claim for service connection for residuals of an aspirin overdose is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 4. The claim for service connection for bilateral hearing loss is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 5. The claim for service connection for tinnitus is not well-grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In general, service connection may be granted for disability due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131 (West 1991). If a chronic disorder such as arthritis, a cardiovascular disease, or a psychosis is manifest to a compensable degree within one year after separation from service, the disorder may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). A preexisting disease or injury will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during service, unless there is a specific finding that the increase in disability during service is due to the natural progress of the disease. See 38 U.S.C.A. § 1153 (West 1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all of the evidence of record pertaining to the manifestations of the disability prior to, during, and after service. See 38 C.F.R. § 3.306(b) (1999). In reviewing any claim for VA benefits the initial question is whether the claim is well grounded. The veteran has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well- grounded." See 38 U.S.C.A. § 5107(a); Robinette v. Brown, 8 Vet. App. 69, 73 (1995). A well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107]." See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1991). If not, the claim must be denied and there is no further duty to assist the veteran with the development of evidence pertaining to that claim. See 38 U.S.C.A. § 5107(a) (West 1991). In order for a claim for service connection to be well grounded, there must be competent evidence of a current disability, of incurrence or aggravation of a disease or injury in service, and a nexus between the in-service injury or disease and the current disability. Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to substantiate service incurrence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Competent medical evidence is also required to satisfy the medical etiology or medical diagnosis issues in secondary service connection claims. See Libertine v. Brown, 9 Vet. App. 521, 522 (1996). The nexus to service may also be satisfied by the presumptive period. See Traut v. Brown, 6 Vet. App. 495, 497 (1994); Goodsell v. Brown, 5 Vet. App. 36, 43 (1993). Alternatively, a claim may be well grounded based on the application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). I. Entitlement To Service Connection For A Respiratory Disorder. The veteran's service medical records do not contain any references to any problems with his lungs. The report of medical history given by the veteran in October 1965 shows that he denied having a history of shortness of breath, pain in the chest, or a chronic cough. The report of a medical examination conducted at that time shows that clinical evaluation of the lungs and chest was normal. The Board notes that hearing conservation data records from during the veteran's period of service confirm that he worked on a flight line and was exposed to jet engines. The veteran testified during hearing held in March 1993 and October 1999 that he had a genetic respiratory disorder, and that he believed that it had been aggravated by exposure to dust and fumes from jets in service. The veteran has presented written witness statements dated in July 1999 from other servicemen which corroborate his account of being exposed to dust and fumes in service. He has also presented witness statements from former post-service co-workers which are to the effect that the auto repair shops where the veteran worked after service did not have a high level of dust or fumes. The medical evidence which is of record is mixed with respect to the issue of whether the veteran's current respiratory disorder is related to service. A medical treatment record dated in October 1991 shows that the impression was chronic obstructive lung disease probably on the basis of his work since he had never been a smoker. The doctor and the veteran reportedly discussed his work conditions and the veteran was going to try to improve the ventilation. A letter dated in October 1991 from Pradeep Sarswat, M.D., to another physician shows that the veteran was seen for increasing shortness of breath for the last few months. He first noticed dyspnea approximately one year earlier when he ran up a flight of stairs. Since then, his breathing had gotten worse, to the point that walking one to two blocks caused him to stop to catch his breath. He had never smoked, but worked as an auto mechanic and was exposed to large amounts of fumes from automobiles, and stated that at one time he worked with asbestos. The impression was hyperreactive airways disease presumably aggravated by exposure to fumes and associated with perennial rhinitis. A record of a history and physical from the Marshalltown Medical and Surgical Center dated in November 1991 shows that the veteran was hospitalized because of progressive dyspnea. He had never smoked in his life. He worked as a car mechanic and owned his own business. He was apparently exposed to large amounts of fumes from the automobiles. He was fine until six months prior to admission when he started to develop increasing dyspnea. He noticed that little chores that he could normally do without any problems now caused shortness of breath. There was no associated cough, wheezing, or pleuritic pains. Pulmonary function testing revealed moderately severe obstructive airway disease. A chest x-ray showed basilar emphysema. It was noted that his father died of emphysema and his mother's brothers had emphysema at an earlier age. Following examination, the diagnosis was airway obstructive disease of unknown etiology, rule out alpha 1 antitrypsin deficiency, rule out pulmonary hypertension. A medical record entry from Pradeep Sarswat, M.D., dated in January 1992 shows that a diagnosis of alpha 1 antitrypsin deficiency had been confirmed. The veteran was told that he could be put on an enzyme treatment, but that it would cost $50,000 per year. The physician thought that the veteran needed to apply for disability benefits, including a VA pension. It was noted that the veteran was in service from January 1962 through January 1966 where he worked with bombers and was exposed to a lot of exhaust fumes, etc. A letter dated in January 1992 from William W. Douglas, M.D., also shows that the veteran was diagnosed as having alpha-1- antitrypsin deficiency. The physician discussed the risk of the veteran's work around significant gasoline exhaust and welding fumes. He said that both of these were known to produce ozone and nitrogen dioxide, each of which caused experimental emphysema in chronic low dose exposure in experimental animals. Ideally, exposure to those should be avoided. A letter dated in January 1992 from Pradeep Sarswat, M.D., contains the following comments: This is to state that [the veteran] has severe progressive emphysema. He has no prior history of smoking. He was employed in the armed forces, where he was exposed to large amounts of jet fuel exhaust, which may have contributed to his current physical condition. The report of a general medical examination conducted by the VA in June 1992 shows that the diagnoses were (1) emphysema with alpha 1 antitrypsin deficiency, diagnosed by local doctor in Marshalltown and confirmed by Mayo Clinic with exertional dyspnea; and (2) underweight with weight loss ten pounds last year. The examiner did not offer an opinion regarding whether the disorders were related to service. A letter dated in September 1993 from Dennis I. Mallory, D.O., contains the following information: The purpose of this letter is to appeal to you to allow [the veteran] to receive Veterans Administration benefits. This patient was diagnosed as having Alpha-1-antitrypsin deficiency, PIZZ phenotype. This produces a very serious obstructive lung disease. [The veteran] was born with this genetic disease. The disease was first identified in 1963 and is believed to affect over 100,000 people and therefore is a common serious genetic disease. It is my medical opinion that his time in the military service contributed to his disease acceleration through exposure to fumes, dust, particulate matter, and other respiratory stressors. Because this is a genetic disease the military could not have caused it, however his military service most certainly contributed to the acceleration of his disease process. To my knowledge this man has a good record, has never been a drinker nor a smoker, and has not participated in any work or recreation habit to exacerbate his disease. In summary, my medical opinion is that his time in the military did contribute to his disease process and because this is a progressive, terminal illness, the support from his country is not only deserved but badly needed. He is regularly seen by me and the University of Iowa Hospitals and Clinics in Iowa City. If you need any further information, please feel free to contact me. A letter dated in December 1996 from Jeff Wilson, M.D., contains the following information: [The veteran] has been under my care for the treatment of lung disease associated with alpha 1 antitrypsin deficiency. This is a genetic disease which [the veteran] was born with, and it is associated with chronically low levels of a protein called alpha-1 antitrypsin in the blood stream. The deficiency of this protein predisposes him to the premature development of emphysema. It is likely, in my opinion, that any exposure to respiratory irritants including smoke, fumes, dust, etc. would likely exacerbate this problem. Additionally, it is typical for people with this disease not to develop significant symptoms which prompt them to seek medical attention, until the lung dysfunction is at least moderately severe in nature. Please feel free to call me if you would like to discuss these issues further. The report of a respiratory system examination conducted by the VA in February 1997 shows that the veteran complained that while he was in the Air Force in the early 1960's, he was exposed to fine sand dust and developed symptoms of seasonal vasomotor rhinitis. After discharge, he worked as an auto mechanic for a number of years. He began developing easy fatigue and insidious onset of shortness of breath in the 1980's. In December of 1991, he was diagnosed with alpha-1-antitrypsin deficiency emphysema. He had never had pneumonia and had been treated for bronchitis twice. He denied tobacco consumption during his life. He complained of slowly decreasing respiratory function. He said that he could climb one flight of stairs or ambulate one block before shortness of breath halted functions. He denied orthopnea. He had previously been experiencing PND, but this had improved after he started on Serevent. He also received Prolastin every two weeks. He denied having fevers, and had very minimal sputum production. On physical examination, the veteran was a 57 year old, thin male in no acute distress. The thorax was within normal limits. The veteran was ventilating through pursed lips, possibly with some accessory muscle assistance in ventilation. A chest x-ray showed hyperinflation. The diagnosis was Alpha-1 deficiency emphysema with markedly abnormal pulmonary function tests. The examiner stated that the veteran was disabled by this condition, but that it was a genetically determined condition and probably was not related to his service experiences. A letter dated in November 1997 from a VA staff physician assigned to the Division of Pulmonary, Critical Care and Occupational Medicine contains the following information: I have reviewed the medical records of [the veteran] regarding his claims of respiratory illness related to exposure to jet fumes and airborne particulates during his service with the United States Air Force from 1962-1966. I have attached pages 1009-1011 from the Textbook of Respiratory Medicine by Murray and Nadel, 1988 Edition. This material is pertinent to the case of [this veteran]. It is common for persons with alpha-1- antitrypsin deficiency who do not smoke to begin to develop symptoms in their 40's and 50's. This is consistent with the course of [the veteran's] disease. Therefore, in the absence of any exposure, the course of his disease is consistent with historical controls. Related to [the veteran's] case, it is known that diesel fumes, which are similar to jet exhaust, can cause acute airways obstruction. The record notes that [the veteran] did not complain of bronchospasm-related shortness of breath during his time with the Air Force. In a strict scientific sense, it is not possible to determine whether exposure to jet exhaust or other particulates may have worsened [the veteran's] respiratory disease progression. There is simply absence of medical evidence one way or the other. However, based on what is known, his disease course is consistent with the historical controls, as shown in the attached document. A letter dated in August 1998 from Jeff Wilson, M.D. shows that he concluded that "it is as likely as not that exposure to jet exhaust fumes, dust, and sand storms while stationed in El Paso, Texas in the early 1960's for two and a half to three years, contributed to the severity of [the veteran's] lung disease. I do not think that this contribution can be quantified." In a letter dated in October 1999, Pradeep Sarswat, M.D., made the following comments: When [the veteran ] first came under my care, he was struggling to understand why, as a nonsmoker in his early fifties, his emphysema had progressed to such a debilitating stage. In discussions with me, he wondered if it was at all related to his working conditions as an auto mechanic. In some of [the veteran's] early charts, I recorded this possibility based solely on [the veteran's] own speculation. I had not come to any conclusions myself as to whether the advanced stage of his disease was attributable to his present working conditions. I later learned from [the veteran] that he had been exposed to substantial amounts of jet fumes and exhaust, dust, and sand while serving with the Air Force in Texas. In one or more letters to the Veterans Administration, I expressed the view that the onset of [the veteran's] emphysema related to alpha 1 anti-trypsin deficiency was probably caused by those in-service exposures. It is my understanding that the certain rating officials in the Veterans Administration have interpreted the early remarks I made in some of [the veteran's] charts as reaching a medical conclusion that the advanced stage of his disease was attributable to his present working conditions as an auto mechanic. Such an interpretation would not be correct. Again, I had not reached any conclusions at that point about the cause or causes of the advanced stage of [the veteran's] disease and was simply repeating [the veteran's] own speculations. I have also read the declarations signed by a number of men who worked with [the veteran] in the Air Force in Texas and while he was an auto mechanic. Having reviewed those declarations, I stand by my conclusion that the accelerated onset of [the veteran's] emphysema related to alpha 1 anti-trypsin deficiency was probably caused by his exposures to jet exhaust, dust, and sand while serving in the Air Force in Texas. A letter from Sander L. Vandor, Ph.D., dated in November 1999 shows that his work in research has included the development of anti-emphysema drug testing models using hamsters and human neutral proteases. He stated that he had reviewed numerous documents sent by the veteran's attorney, and "concluded in no uncertain terms that the progression of [the veteran's] emphysema is directly attributable to his in- service exposures to sand, dust, and jet fumes." He further stated that he had reviewed an opinion given by a VA physician, and concluded that it was fundamentally incorrect. Finally, a medical opinion from Jeff Wilson, M.D., dated in November 1999 contains the following information and comments: I appreciate the opportunity to review [the veteran's] medical condition. I apologize for the length of time it has taken for me to pull this information together, but hope that you will find it useful. I first met [the veteran] in 1993. At that time [the veteran] was 52 years old and had been symptomatic from a respiratory standpoint for five to seven years. His lung function tests at that time revealed evidence of severe emphysema. I have enclosed a copy of these for your review and use. Based on my review of several studies of patients with severe alpha-1-antitrypsin deficiency who have been lifetime nonsmokers like [the veteran], I feel that the severity of [his] disease can be accurately categorized as more severe than is typically described in this situation. While there is variability in symptoms and lung function in lifetime nonsmokers with alpha-1-antitrypsin deficiency, the majority of patients described have not had this severe lung disease at his age. My personal experience with nonsmoking patients with severe alpha-1-antitrypsin deficiency is also consistent with this view. While I have great respect for Dr. Hempel, a former colleague of mine, I would not completely agree with the statement in his letter dated 11-03-97, that the course of [the veteran's] disease is consistent with historical controls. I feel that it is more severe than typically described for most historical control groups. Dr. Hempel is a well- trained pulmonologist, but does not have specific expertise or interest in alpha- 1-antitrypsin deficiency to my knowledge. Dr. Wilson further stated that he felt that it was more likely than not that the environment in which the veteran worked in the air force had an adverse affect on the veteran's lung disease. Service connection may be granted if a genetic disorder is aggravated by service. See Lowe v. Derwinski, 2 Vet. App. 495, 498 (1992). After reviewing all of the evidence of record, the Board finds that the preponderance of the medical evidence favors the claim. The Board finds that the veteran's pre-existing genetic respiratory disorder increased in severity during service beyond the natural progression of the disorder. Accordingly, the Board concludes that the veteran's respiratory disorder was aggravated by service. II. Entitlement To Service Connection For An Acquired Psychiatric Disorder. The veteran's service medical records do not contain any diagnoses of an acquired psychiatric disorder. Although a service medical record dated in March 1962 shows that the veteran was treated for an overdose of aspirin, and was referred to the neuropsychiatric clinic, a subsequent record dated in April 1962 shows that he was discharged from the neuropsychiatric clinic and was making a good adjustment. The record includes a notion that the diagnosis was "3203". This code does not correspond to any diagnostic code known to the Board. The service medical records also include the report of medical history given by the veteran in October 1965 which shows that he denied having a history of depression, excessive worry, or nervous trouble of any sort. The report of a medical examination conducted at that time shows that the psychiatric evaluation was normal. The earliest post-service medical record containing a diagnosis of an acquired psychiatric disorder is from many years after service. The report of a mental disorders examination conducted by the VA in June 1992 shows that the examiner concluded that no current psychiatric diagnosis was warranted. Moreover, the VA examiner stated that the suicide attempt many years ago in service did not have any bearing on the veteran's recent depressive symptoms which were instead related to illness and unemployment. Although a private medical record dated in January 1993 shows that the diagnoses included major depressive disorder, recurrent episodes, the record does not contain any medical opinion linking the current psychiatric disorder to the veteran's period of service. The Board has noted that the veteran testified during the hearing held in October 1999 that he believed that the aspirin overdose which occurred in service was a manifestation of his current psychiatric disorder. Significantly, however, the veteran's own opinion that his current disorder is related to service is not enough to support the claim because lay persons are not qualified to offer opinions that require medical expertise, such as diagnoses or opinions as to the cause of a disability. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). See also Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (a veteran does not meet his burden of presenting evidence of a well- grounded claim where the determinative issue involves medical causation and the veteran presents only lay testimony by persons not competent to offer medical opinions). A veteran is competent to testify as to the symptoms that he experienced, but he is not competent to render a medical opinion regarding the significance of those symptoms. See McIntosh v. Brown, 4 Vet. App. 553, 560 (1993). In summary, the veteran has not presented any competent evidence linking his current psychiatric disorder to service. Accordingly, the Board concludes that the claim for service connection for is not well-grounded. Because the claim is not well-grounded, there is no further duty on the part of the VA to develop evidence with respect to the claim. See 38 U.S.C.A. § 5103 (West 1991); McKnight v. Gober, 131 F.3d 1483, 1484-85 (Fed. Cir. 1997). III. Entitlement To Service Connection For Residuals Of An Aspirin Overdose. A service-connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). However, the veteran has not presented any evidence that he currently has any residuals of an aspirin overdose. Although the veteran's service medical records show that he had an aspirin overdose in service, they contain no indication that this resulted in any permanent residuals. The veteran's current medical treatment records also do not contain any indication that the overdose in service caused any ongoing problems. Accordingly, the Board concludes that the claim for service connection for residuals of an aspirin overdose is not well grounded. IV. Entitlement To Service Connection For Bilateral Hearing Loss. Before service connection may be granted for hearing loss, the hearing loss must be of sufficient severity to be considered to be a disability under VA regulations. For the purpose of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385 (1999). The Board notes that the veteran has not presented any evidence showing that he has hearing loss of the left ear which is severe enough to be considered to be a hearing loss disability for which service connection may be granted. See 38 C.F.R. § 3.385 (1999). On the contrary, the report of a general medical examination conducted by the VA in June 1992 shows that the examiner concluded that there were no signs of hearing loss. Also, a private audiology examination report dated in December 1996 shows that the left ear does not have significant hearing loss as required by 38 C.F.R. § 3.385. With respect to the right ear, the Board notes that the December 1996 private examination report indicates that the veteran has hearing loss which meets the standards of 38 C.F.R. § 3.385. Nevertheless, the report does not contain any medical opinion linking that hearing loss to the veteran's period of service. Accordingly, the Board concludes that the claim for service connection for bilateral hearing loss is not well-grounded. V. Entitlement To Service Connection For Tinnitus. During the hearing held in October 1999, the veteran testified that he believed that he had developed tinnitus as a result of exposure to noise from jet engines during service. The veteran's service medical records do not contain any references to tinnitus. On the contrary, a service hearing conservation data record dated in May 1965 shows that the veteran had no tinnitus in either the right or the left ear. Although the report of a general medical examination conducted by the VA in June 1992 shows that the veteran gave a history of having ringing in his ears since service, the fact that the veteran's own account of the etiology of his disability was recorded in his medical records is not sufficient to support the claim. In LeShore v. Brown, 8 Vet. App. 406, 409 (1995), the Court held that: Evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute "competent medical evidence"...[and] a bare transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional. In summary, the veteran has not presented any competent evidence demonstrating a link between his current tinnitus and his period of service. Accordingly, the Board concludes that the claim for service connection for tinnitus is not well-grounded. ORDER 1. Service connection for aggravation of a respiratory disorder is granted. 2. Service connection for an acquired psychiatric disorder is denied. 3. Service connection for residuals of an aspirin overdose is denied. 4. Service connection for bilateral hearing loss is denied. 5. Service connection for tinnitus is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals