Citation Nr: 1138167 Decision Date: 10/13/11 Archive Date: 10/19/11 DOCKET NO. 09-34 234 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a left lung disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The appellant had Active Duty for Training with the U.S. Army National Guard from September 12, 1976 to March 17, 1977. This matter comes to the Board of Veterans' Appeals (Board) from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg. In March 2011, the appellant and his spouse testified before the undersigned Veterans Law Judge at a Board hearing at the RO. A transcript is of record. The appellant submitted additional evidence at the hearing that was not considered by the Agency of Original Jurisdiction (AOJ). A remand, pursuant to 38 C.F.R. § 20.1304 is not necessary, however, as the appellant submitted a written waiver of RO consideration of the new evidence. FINDING OF FACT The competent and probative evidence of record shows that the appellant does not have a left lung disability related to his left pneumothorax during his Active Duty for Training. CONCLUSION OF LAW A left lung disability was not incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.304 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The appellant has received all essential notice, has had a meaningful opportunity to participate in the development of his case, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Prinicipi, 353 F.3d 1369 (Fed. Cir., 2004). An RO letter dated in April 2008 informed the appellant of all five elements required by 38 C.F.R. § 3.159(b) and Dingess v. Nicholson, 19 Vet. App. 473 (2006) as stated above. Regarding the duty to assist, VA obtained the appellant's service treatment records, Social Security Administration (SSA) records, and copies of the appellant's VA treatment records. The appellant submitted copies of private treatment records. The RO also provided the appellant with a VA examination from a VA examiner addressing the etiology of the appellant's left lung disability. The examination report obtained contains sufficient information to decide the issue on appeal and further examination is not necessary. See Massey v. Brown, 7 Vet. App. 204 (1994). While the VA examiner indicated in the report that relevant private treatment records were not available for review, the appellant related to the examiner his medical history, which was consistent with the information provided in the private treatment records. Therefore, the VA examiner had the opportunity to make an informed decision regarding the etiology of the appellant's left lung disability. In March 2011, the appellant testified that he was receiving ongoing treatment for his lung problems. The Board does not find that any additional records are necessary to make a determination in this claim. While the appellant continues to receive treatment from his primary care doctor, there is no indication of any new information in these records. Thus, the records would essentially be cumulative in nature, as it is already demonstrated that the appellant has chronic lung problems. The appellant also mentioned that his separation examination report on which he mentioned his ongoing lung problems in the U.S. Army National Guard was not in the file. Personnel records show the appellant was separated from Active Duty Training in March 1977 and there is a Report of Medical Examination dated in May 1977. There is no indication that any of his service treatment records are missing. The record as it stands is adequate to make a decision on appeal. The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the appellant by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the appellant in adjudicating this appeal. II. Service connection Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). A Veteran may be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C.A. § 101(21)(24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) duty in which the individual concerned was disabled from injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1131. ACDUTRA includes full time duty performed by members of the National Guard of any state or the reservists. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full time duty performed by a member of the Reserves or the National Guard of any state. 38 C.F.R. § 3.6(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this regard, the Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). Moreover, the Board notes that, in adjudicating a claim, it is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, the United States Court of Appeals for Veterans Claims (Court) has declared that, in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2. Vet. App. 614, 618 (1992). The appellant contends that he has a left lung disability related to his service in the U.S. Army National Guard. He states that he had a left pneumothorax while stationed at Fort Dix and was sent home for six months to recuperate. He continued to have residuals in the military including colds, pneumonia, and having mucus and fluid on the left side of his lungs. He indicated that he mentioned his symptoms on the separation examination but the record was not in the file. A few years after service, he testified that his lung collapsed again in 1981 and he was hospitalized at a private hospital in Boston, Massachusetts General, for this and for pneumonia. His wife testified that they got married in 1978 and that she recalled the appellant would get winded very easily and had a scar on his chest from the collapsed lung. The appellant also would get frequent colds and pneumonia and had chest pain on his left side. The service treatment records show the appellant was treated for complaints of chest pain and cough productive of greenish sputum in October 1967. A chest x-ray revealed a 50 percent left pneumothorax/ collapsed lung. A chest tube was inserted and the chest expanded. A May 1977 examination report at the time of the appellant's separation from his National Guard service shows that the chest x-ray was negative. After service, private hospital records from Massachusetts General show the Veteran had another left pneumothorax and underwent a left pleurodesis; resection of left lung apical blebs in January 1981. A January 1981 pathology report also showed a final diagnosis of subpleural emphysema, subpleural fibrosis and chronic inflammation, and focal anthracosis. These treatment records note that the Veteran was a one pack-per-day smoker. In March 1984 a chest x-ray examination report showed a probable fibrocalcific disease in the left lung. It was noted that these findings were not present in the previous examination of 1981. Tuberculosis was suspected but later was ruled out. The assessment was bronchitis. Subsequent private treatment records dated from 1999 to 2004 mostly show the appellant had a normal chest x-ray and clear lungs. In February 2002, a chest x-ray examination report showed a vague left lung density; but four days later, this had resolved. A September 2004 private emergency room record from Community Hospital notes that the appellant had complaints of sudden onset of left chest pain and a syncopal episode. He reportedly had severe pain in the left side of his chest and passed out twice. He also had nausea and vomiting and was coughing up a whitish phlegm, and was running a fever. A computerized axial tomography scan revealed the possibility of a filling defect in the left lower lobe pulmonary artery, suggestive of pulmonary embolism; but this was not felt to be definite. October 2004 private office visit notes show that the appellant had a resolving pulmonary emboli. In November 2004, a private office visit note shows a stable pulmonary emboli. A February 2005 VA primary care record shows the appellant was referred with complaints of continuous chest pain and shortness of breath since November 2004, when he had been treated at Community Hospital for a "blood clot to lung." He complained that his symptoms had been progressively worsening. An August 2005 VA computed tomography (CT) scan of the abdomen notes that the lung bases were clear. VA treatment records dated in 2007 note that the appellant continued to smoke but was attempting smoking cessation. VA treatment records dated in August 2008 and September 2008 note complaints of left-sided pleuritic chest pain. He reportedly was taken to the North Bay emergency room where he was diagnosed with pleurisy per chest x-ray and electrocardiogram. The impression was pleuritic chest pain. An August 2008 VA examination report shows the appellant's history of pneumothorax with chest tube while on duty in 1976. He left active duty in March 1977 and had no further problems until 1981 when he reported having recurrent left pneumothorax (the examiner noted that he did not have these records to review). The appellant reported that he was hospitalized at Mass General and had what sounded like a pleurodesis. He did well until 2004 when he reported having a pulmonary embolus (again the examiner reported having no record of this). He was placed on an anticoagulant treatment for six months and had no further recurrence of either pulmonary embolism or pneumothorax. He had been smoking since the age of 10 and continued to smoke one pack-per-day. Although his pulmonary embolism and pneumothorax had improved his chronic obstructive pulmonary disease was getting worse. The appellant also had a history of shortness of breath with moderate exertion and some pleuritic pains. In addition, he had mild expiratory wheezes in the bases bilaterally and an old healed scar on the left lateral chest wall. On physical examination, the chest x-ray was within normal limits. Pulmonary function test results were interpreted as showing a moderate obstructive ventilatory impairment. The summary of problems included a left pneumothorax in 1976 documented in the service treatment records and a possible recurrence in 1981 (no records provided); pulmonary embolus in 2004 (by history alone, no medical records) with no recurrence and no apparent residuals. Also chronic tobacco use since childhood was noted; and chronic obstructive pulmonary disease due to tobacco abuse, not caused by pneumothorax or pulmonary embolus. The examiner determined that the appellant's pulmonary embolism and chronic obstructive pulmonary disease were not caused by or a result of an in-service event or injury (pneumothorax). The rationale given was the examiner's experience, expertise, and literature. Also pulmonary embolism and pneumothorax were entirely different conditions, which had occurred years apart and had no pathological relationship. The examiner reiterated that the chronic obstructive pulmonary disease was due to smoking since childhood and was not caused by either the pneumothorax or pulmonary embolus. The Board again highlights that it must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). Based on the foregoing, the Board finds that the preponderance of the evidence shows that the appellant's lung disability, including chronic obstructive pulmonary disease and pulmonary embolism, is not related to service. In making this determination, the Board finds it significant that the only evidence of record indicating a possible nexus between the appellant's current lung disability and his military service are the appellant's and the appellant's wife's assertions. The Board acknowledges that the appellant is competent to report that he has continued to experience chest pain and shortness of breath since service. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). The appellant is also competent to report that he was diagnosed as having pleuritic chest pain after service in 2008. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge). Competent testimony is limited to that which the witness has actually observed and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses-that which is heard, felt, seen, smelled, or tasted. Layno v. Brown, 6 Vet. App. 465 (1994). It is within the appellant's realm of personal knowledge whether he first developed chest pain and shortness of breath during service, and has continued to experience such pain and shortness of breath since service. The Board also finds that the appellant's reports that he has continued to have shortness of breath and chest pain since service are credible, as they are consistent, and there is no reason shown to doubt his credibility, in this regard. However, although the appellant contends that the symptoms he has experienced since service are related to his left pneumothorax in service, he has submitted no competent medical evidence or opinion to corroborate this contention. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). The appellant's and his wife's opinions are insufficient to provide the requisite nexus between an in-service left pneumothorax and his current disability because, as lay persons, they are not competent to establish a medical etiology merely by their own assertions; such matters require medical expertise. See 38 C.F.R. § 3.159(a)(1); Duenas v. Principi, 18 Vet. App. 512, 520 (2004); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (holding that a layperson is generally not capable of providing opinions on matters requiring medical knowledge, such as the condition causing or aggravating the symptoms); see also Bostain v. West, 11 Vet. App. 124, 127 (1998); Stadin v. Brown, 8 Vet. App. 280, 284 (1995); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). As such, his statements regarding the etiology of his lung disability are merely speculation as to a possible cause as he is not medically qualified to prove a matter requiring medical expertise, such as an opinion as to medical causation. The Board finds the August 2008 medical opinion of the VA examiner, which is based on a review of the appellant's complete medical history (albeit some of which was reported by the appellant) and is supported with a well-reasoned and cogent medical rationale, to be more probative as to the etiology of the appellant's lung disability than the appellant's and his wife's conclusory statements. After reviewing some of the appellant's records and taking the history from the appellant, which was relied on as true, acknowledging the lay evidence of record, and examining the appellant, the August 2008 VA examiner provided the opinion that the appellant's current chronic obstructive pulmonary disease was not related to the left pneumothorax in service, because it was due to his long history of smoking; and that the pulmonary embolism was not related to the left pneumothorax as there was no pathological relationship between the two disorders that occurred years apart. The medical records show that the appellant did not have any residual lung disability related to the left pneumothorax after the 1981 surgery. He continued to complain of shortness of breath, left-sided pleuritic chest pain, and had mild expiratory wheezes. However, he did not have any diagnosed disability to account for these symptoms that has been related to his previous left pneumothorax in service. The records show findings of bronchitis, chronic obstructive pulmonary disease, and a possible pulmonary embolism; but these have not been related to the left pneumothorax. While there are reported symptoms of shortness of breath and left pleuritic chest pain, there is no diagnosed lung disability that has been related to the left pneumothorax subsequent to the 1981 surgery. As such, after weighing and balancing the evidence of record, the Board finds that the preponderance of the evidence of record is against a finding that the appellant's current lung disability had its onset during active service, or is related to any in-service disease or injury. See 38 U.S.C.A. § 1131. Accordingly, the Board finds that the criteria for service connection for a left lung disability are not met and the appellant's claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. See 38 U.S.C.A. § 5107(b). However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). ORDER Entitlement to service connection for a left lung disability is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs