Citation Nr: 1028911 Decision Date: 08/02/10 Archive Date: 08/16/10 DOCKET NO. 00-08 391 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Medical and Regional Office Center (M&ROC) in Wichita, Kansas THE ISSUE Entitlement to service connection for a respiratory disability, claimed as the residuals of bronchiectasis, the residuals of pneumonia, and chronic obstructive pulmonary disease. REPRESENTATION Appellant represented by: Mark R. Lippman, Attorney at Law ATTORNEY FOR THE BOARD Harold A. Beach INTRODUCTION The Veteran served on active duty from May to November 1952. This case was previously before the Board of Veterans' Appeals (Board) in February 2008. The Board found that the Veteran had submitted new and material evidence to reopen claims of entitlement to service connection for the residuals of pneumonia and the residuals of bronchiectasis. Thereafter, the Board remanded the underlying issues to the RO for a de novo review of the record and readjudication. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993); Prec. Op. VA Gen. Counsel 16-92 (Authority of the Board of Veterans' Appeals to Address Matters Not Considered by the Agency of Original Jurisdiction, 57 Fed. Reg. 49747 (1992)). Following a de novo review, the M&ROC denied the Veteran's claims of entitlement to service connection for the residuals of pneumonia and the residuals of bronchiectasis. Thereafter, the case was returned to the Board for further appellate action. Throughout the course of this appeal, the issues have been classified as entitlement to service connection for pneumonia; entitlement to service connection for chronic obstructive pulmonary disease; and entitlement to the residuals of bronchiectasis. The Board has restated those issues, as noted on the title page, in order to more adequately reflect the actual disabilities being claimed. 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 1. A chronic, identifiable respiratory disability, primarily diagnosed as chronic obstructive pulmonary disease, was first manifested many years after service, and the preponderance of the competent evidence of record shows that it is unrelated thereto. 2. The totality of the competent evidence of record shows that the Veteran's bronchiectasis and pneumonia in service were resolved without residual disability. CONCLUSION OF LAW A respiratory disability, claimed as the residuals of bronchiectasis, the residuals of pneumonia, and chronic obstructive pulmonary disease, is not the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002 and Supp. 2009); 38 C.F.R. §§ 3.159, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of the issue of entitlement to service connection for respiratory. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In January 2000, VA received the Veteran's claim, and there is no issue as to providing an appropriate application form or completeness of the application. Following the receipt of that application, VA notified the Veteran of the information and evidence necessary to substantiate and complete his claim, including the evidence to be provided by the Veteran, and notice of the evidence VA would attempt to obtain. VA informed him of the criteria for service connection and set forth the criteria, generally, for rating service- connected disabilities and for assigning effective dates, should service connection be granted. Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. That duty requires VA to make reasonable efforts to obtain relevant records (including private records) that the Veteran adequately identifies to VA and authorizes VA to obtain. 38 U.S.C.A. § 5103A(b)(1) (West 2002 and Supp. 2009). However, the duty to assist is not a one-way street. Olsen v. Principi, 3 Vet. App. 480 (1992). It is the Veteran's responsibility to present and support his claim. 38 U.S.C.A. § 5103 (West 2002 and Supp. 2009). In this case, VA obtained or ensured the presence of the Veteran's service treatment records; records reflecting his treatment from January 1991 to June 1995; records reflecting his treatment from June 1995 to February 2003; and an April 2002 report from Craig N. Bash, M.D. In February 1996 and July 2009, VA examined the Veteran to determine the nature and etiology of any respiratory disability found to be present. The VA examination reports reflect that the examiners reviewed the Veteran's medical history, including his service treatment records; interviewed and examined the Veteran; documented his current medical conditions; and rendered appropriate diagnoses and opinions generally consistent with the evidence of record. Therefore, the Board concludes that the VA examinations are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2009); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In April 2003 and November and December 2009, the claims file was sent to VA health care providers for an additional review and opinion as to the nature and etiology of the Veteran's respiratory disability. Finally, VA offered the Veteran an opportunity to present additional evidence and argument at a hearing on appeal. However, to date, he has declined to accept that offer. In March 2010, following the development of the record, the Veteran's representative requested copies of several pieces of evidence, so that he and the Veteran could review the evidence and respond. The requested evidence was sent to the representative in May 2010. However, to date, VA has not received a response. In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claim; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. The Factual Background On the Report of Medical History, completed in conjunction with his April 1952 service entrance examination, the Veteran responded in the affirmative, when asked if he then had, or had ever had, whooping cough or chronic or frequent colds. He responded in the negative, when asked if he then had, or had ever had, asthma, shortness of breath, or pain or pressure in his chest. On examination, his lungs and chest were reportedly normal. The following month X-rays of the Veteran's chest were negative. On several occasions from May through October 1952, the Veteran was hospitalized for complaints of a sore throat, cough, and headaches. The various diagnoses included pneumonia, acute bronchitis, and bronchiectasis. In November 1952, following consideration of his case by a Physical Evaluation Board, the Veteran was given a medical discharge from service due to bronchiectasis. In conjunction with his discharge, he was given disability severance pay. From January 1991 to June 1995, the Veteran was treated for complaints of sinus problems, shortness of breath, chest congestion, and a cough. It was noted that he smoked from one to two packs of cigarettes per day. The various diagnoses were sinusitis, allergic rhinitis, and acute bronchitis. In May 1994, chest X-rays revealed the presence of emphysema. There was no evidence of pneumonia. In October 1995, the Veteran filed a claim of entitlement to service connection for lung problems, claimed as the residuals of pneumonia. He did not list the names of any doctors who had treated him since service or the names of persons, other than doctors, who knew of his respiratory disability before, during, or after service. In February 1996, the Veteran was examined by VA to determine the nature and etiology of any respiratory disability found to be present. He complained of a ten year history of shortness of breath, primarily with exercise and chest pain; a soft cough with intermittent phlegm production, mostly white , occasionally changing to brown. He reportedly smoked a half a pack of cigarettes a day, it was noted that he had been smoking since he was sixteen. It was noted that he had worked in a shipyard for twenty-six years; that he had been a crane operator and exposed to diesel smoke; that he had been a welder and exposed to welding fumes; and that he had been a painter and exposed to sandblasting. Chest X-rays revealed mild interstitial fibrosis. There were no infiltrates. A CT scan of the chest reportedly showed no conclusive evidence of bronchiectasis. The results of pulmonary function testing were consistent with moderate obstructive lung disease. Following the VA examination, the diagnoses were moderate chronic, obstructive lung disease, a history of pneumonia and evidence of scarring on the CT scan; a history of bronchiectasis but no evidence of it on the CT scan; and a history of chest pain related to coronary artery disease. From June 1995 to February 2003, the Veteran was treated by VA, in part, for respiratory disability. His complaints included dyspnea on exertion, orthopnea, and a cough productive of whitish phlegm. It was noted that he had a long history of smoking two to three packs of cigarettes a day. The primary diagnosis, such as that following a February 2000 Pulmonary Consultation, was severe chronic obstructive pulmonary disease. In December 1999 and March 2000, X-rays revealed biapical pleural thickening, an elevated right diaphragm, a density/fibrotic changes in the right upper lung field, and right basal infiltrative changes. In April 2002, Craig N. Bash, M.D., reviewed the Veteran's service treatment records, post-service medical records, imaging reports, rating decisions, report of the February 1996 CT scan, other physician statements, and medical literature. After reviewing the CT images, Dr. Bash opined that the Veteran had bronchiectasis and that it had been present since service. Dr. Bash also opined that the Veteran's multiple post service lung infections, as documented in the February 1996 VA examination, were likely secondary to the bronchiectasis. Dr. Bash stated that the February 1996 CT scan had been misread, as it showed thick-walled, dilated, irregular bronchi, consistent with cylindrical bronchiectasis. In this regard, Dr. Bash noted that the Veteran had experienced acute bacterial infections, usually heralded by increased sputum production with enhanced viscosity and that the obstructive pulmonary function test pattern was consistent with bronchiectasis. In April 2003, a VA health care provider reviewed the Veteran's claims file to determine whether the Veteran's current pulmonary problems were due to his multiple respiratory problems in service. Following her review, the VA health care provider opined that the Veteran's pulmonary problems were not due to bronchiectasis. She noted that there was well-documented evidence of significant obstructive lung disease, due to the Veteran's history of tobacco abuse, i.e., two and a half packs of cigarettes a day for fifty years, as well as a variety of other medical problems which could cause the Veteran's dyspnea. In July 2009, the Veteran was reexamined by VA. He complained of shortness of breath, one period of hemoptysis, and a daily cough productive of one-half cup of white to yellow sputum per day. The Veteran was taking multiple medications, including inhalers, and was on oxygen therapy at night and, as needed, during the day. It was noted that he had smoked three to three and a half packs of cigarettes a day between the ages of fifteen and sixty- six. The examiner also noted the February 1996 reports of the CT scan and X-rays which had shown no conclusive evidence of bronchiectasis and mild interstitial fibrosis but no infiltrate. Following the examination, the diagnosis was longstanding bronchopulmonary disease. The examiner reported that in service, a bronchogram had reportedly shown bronchiectasis but that the diagnosis was in doubt, because it had not been confirmed thereafter. The examiner also reported that over the years the natural progression of bronchiectasis would have increased lung cell destruction with an increase in production which generally be colored yellow or brown or green or combinations thereof. In this regard, the examiner stated that the Veteran's sputum was primarily white but occasionally tinged yellow. In combination with the negative CT scan from February 1996, the VA examiner concluded that it was not as likely as not that the Veteran had ongoing bronchiectasis related to military service. A subsequent pulmonary function test revealed moderate to severe air flow obstruction associated with moderate air trapping. Chest X-rays revealed hyperexpansion of both lungs, scarring at the right lung apex, and elevation of the left hemidiaphragm. In December 2009, the Chief of Pulmonary/Critical Care at a VA Medical Center reviewed the Veteran's claims files, including the July 2009 VA examination report, reports of imaging studies, chest X-ray and CT reports, pulmonary function studies, progress notes, and letters of communication. He also personally reviewed the chest X-rays and CT scans available to him on the Computerized Patient Record System. The VA examiner noted that the February 1996 CT report did not show any evidence of bronchiectasis and that a review of CT images from January 2009 was also negative. Those scans reportedly showed evidence of chronic obstructive pulmonary disease, specifically emphysema and chronic bronchitis. Utilizing all of the information available to him the Chief of Pulmonary/Critical Care concluded that it was not as likely as not that the Veteran had bronchiectasis or bronchopulmonary disease related to his military service. Rather, he firmly believed that the Veteran had chronic obstructive pulmonary disease due to heavy tobacco smoking. In December 2009, a VA staff radiologist also reviewed the images of the January 2009 CT scan, as well as chest X-rays from March, July, and September 2009. In addition, the radiologist noted the report of the February 1996 CT scan and stated that the actual images were no longer available. He concluded that no finding of bronchiectasis was identified or reported and that it was at least unlikely that the Veteran had bronchiectasis related to his military service. The Applicable Law and Regulations Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Generally, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992). 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, as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease identity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. Nevertheless, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Analysis The Veteran contends that he has a respiratory disorder, primarily as a result of his treatment for pneumonia, acute bronchitis, and bronchiectais. Therefore, he maintains that service connection is warranted. However, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim. Accordingly, the appeal will be denied. A review of the evidence shows that the Veteran had a respiratory disability in service, variously diagnosed as pneumonia, acute bronchitis and bronchiectasis. It also shows that he currently has a respiratory disability diagnosed, primarily, as chronic obstructive pulmonary disease. Thus, he meets the first and the third criteria for service connection. The question, then, is whether there is a nexus between the respiratory disability in service and the one he currently experiences. In this regard, the preponderance of the evidence is against the claim. Although Dr. Bash reviewed the Veteran's history and concluded that the Veteran currently has bronchiectasis and has had bronchiectasis since service, the totality of the evidence does not support that conclusion. Even according to the history given by the Veteran in February 1996, there is no evidence of continuing symptomatology of bronchiectasis or any other chronic, identifiable respiratory disability for many years after the Veteran's discharge from service. Moreover, a substantial body of evidence, including two subsequent reviews of the claims file by VA examiners, two subsequent VA examinations, a more recent CT scan, and three chest X-rays actively contradict Dr. Bash's conclusion. Indeed, all are consistently negative for a finding of bronchiectasis. In fact, the multiple reviews and examinations performed prior to and since Dr. Bash's opinion consistently relate the Veteran's current chronic obstructive pulmonary disease to his history of heavy smoking. Thus, the Board concludes that the preponderance of the evidence is against Dr. Bash's conclusion that the Veteran's current respiratory problems are secondary to his bronchiectasis in service. The only other reports of a nexus between the Veteran's bronchiectasis in service and his current lung problems come from the Veteran. As a layman, he is qualified to report on matters which are capable of lay observation, such as his various symptoms and the time of their onset. However, he is not qualified to render opinions which require medical expertise, such as the diagnosis or cause of a particular disability. 38 C.F.R. § 3.159(a); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Although he has submitted the statement by Dr. Bash showing a nexus to service, that statement has been repudiated by a preponderance of the evidence of record. Therefore, without more, the Veteran's opinion is not considered probative evidence of service connection. 38 C.F.R. § 3.159(a). Because the totality of the evidence is against a finding of a nexus to service, the Veteran does not meet the second criteria for service connection. Since all of the criteria must be met, service connection is not warranted. Accordingly, service connection for a respiratory disability, claimed as the residuals of bronchiectasis, the residuals of pneumonia, and chronic obstructive pulmonary disease is denied. In arriving at this decision, the Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. In this case, the preponderance of the evidence is against the Veteran's claims. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102. ORDER Entitlement to service connection is denied for a respiratory disability, claimed as the residuals of bronchiectasis, the residuals of pneumonia, and chronic obstructive pulmonary disease. ____________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs