Citation Nr: 1237663 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 07-13 462 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a respiratory disorder other than chronic obstructive pulmonary disorder (COPD), to include sinusitis, rhinitis, bronchitis and asthma, to include as due to exposure to "stack gas" or, in the alternative, as due to chemical exposure incurred during involvement in Project 112-Shipboard Hazard and Defense (SHAD). ATTORNEY FOR THE BOARD S. Dale, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1958 to November 1966, and also had subsequent service in the Naval Reserve from January 1967 to September 1991. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Offices (RO's) in St. Louis, Missouri, which denied the benefits sought on appeal. The Veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. Original jurisdiction of the Veteran's claim resides in the VARO in Houston, Texas. The Board subsequently remanded the case for further development in April 2010, December 2010 and September 2011. As will be discussed below, the Board's prior remand instructions have been substantially complied with, and thus, the Board may proceed with adjudication of the Veteran's claim. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). Characterization of the issue on appeal In January 2004, the Veteran filed a claim to establish service connection for bronchitis. This claim was denied in an unappealed September 2004 rating decision. In June 2005, the Veteran filed a petition to reopen his claim to establish service connection for bronchitis. This claim was denied by the St. Louis RO in the March 2006 rating decision. Later that month, the Veteran expressed disagreement with the March 2006 decision and also asserted that he wished to file a separate claim to establish service connection for "obstructive pulmonary obstruction." The Houston RO accepted this statement as a separate claim to establish service connection for COPD. This claim was denied by the Houston RO in the September 2006 rating decision. The Board notes that the Veteran did not specifically express disagreement with this determination. In April 2007, the Houston RO provided the Veteran with a statement of the case which continued to deny his petition to reopen his previously denied claim to establish service connection for bronchitis. In October 2007, the Veteran perfected an appeal to the Board. As noted by the Board in the April 2010 remand which reopened the Veteran's previously denied claim to establish service connection for bronchitis, as well as the December 2010 and September 2011 remands, the Veteran's asserted respiratory disorder has been variously diagnosed as asthma, allergic rhinitis, bronchitis and sinusitis. See e.g., a February 2006 private treatment record from T.S.M., M.D., and the November 2011 VA opinion. Accordingly, the Veteran's claim has been expanded as stated on the title page of this decision. Clemons v. Shinseki, 23 Vet. App. 1 (2009). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The Veteran's respiratory disorders other than COPD, diagnosed as rhinitis, sinusitis, asthma and bronchitis, were diagnosed decades after service, and are not the result of any incident of the Veteran's service, to include as due to exposure to "stack gas" or chemical exposure incurred during involvement in Project 112- SHAD. CONCLUSION OF LAW A chronic respiratory disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. § 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (the VCAA) 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 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his/her representative, if applicable, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 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. This notice must be provided prior to an initial unfavorable decision by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Further, in Dingess v. Nicholson, the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his/her claim. 19 Vet. App. 473 (2006); see also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. The Board finds that the VCAA duty to notify was satisfied by a letter sent to the Veteran in June 2005 with regard to the claim for service connection for a respiratory disorder. The letter addressed all of the notice elements and was sent prior to the initial unfavorable decision by the Houston RO in June 2005. Additionally, a July 2006 letter provided the Veteran with notice concerning the assignment of disability ratings and effective dates as per the Court's holding in Dingess. Any defect in the timing of the notice was harmless error as service connection is being denied, and therefore no rating or effective date is being assigned. Therefore, the Board finds that VA has fulfilled its duty to notify under the VCAA. VA has also satisfied its duty to assist the Veteran at every stage of this case with regard to the claim for a respiratory disorder. All available service treatment records as well as all identified medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. Specifically, the Veteran's Federal civilian personnel records dated from October 1992 to September 1997, including records from the Navy Medical Center located in Negishi, Japan, have been obtained and associated with the Veteran's VA claims file. The Veteran was afforded VA examinations in August 2003 and August 2010 in connection with his claim. Additionally, addendum opinions were obtained in March 2004, March 2011 and November 2011. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the individual VA examinations and opinions of record have deficiencies; however, when viewed together, the diagnoses rendered and opinions offered are sufficient for the adjudication of the Veteran's claim. While the Veteran's VA claims file was not available to or reviewed by the VA medical professionals in August 2003 or March 2004, the claims file was available to and reviewed by the VA medical professional who conducted the August 2010 VA examination and offered the March 2011 and November 2011 opinions. The Board notes that the August 2010 VA examination report and the March 2011 and November 2011 opinions reflect specific references to evidence contained in the claims file and the diagnoses and opinions represented are congruent with the balance of the medical evidence of record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has also assisted the Veteran throughout the course of this appeal by providing him with a statement of the case (SOC) and a supplemental statement of the case (SSOC) which informed him of the laws and regulations relevant to his claim. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). However, medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, 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) (footnote omitted). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). Discussion The Veteran is seeking entitlement to service connection for a respiratory disorder, contending that his variously diagnosed respiratory disorders are related to his service, to include his involvement in Project 112/SHAD and exposure to "stack gas." Briefly, U.S. Department of Defense (DoD) initiated Project 112 out of concern for the ability of the United States to protect and defend against potential chemical and biological threats. See http://fhp.osd.mil/CBexposures/shad.jsp (last visited September 14, 2012). Project 112 consisted of both land-based and sea-based tests. Id. The sea-based tests (Project SHAD) were designed to identify U.S. warships' vulnerabilities to attacks with chemical or biological warfare agents and to develop procedures to counter such attacks while maintaining a war-fighting capability. Id. The Veteran is a confirmed participant in the Project 112/SHAD database, and was aboard the USS Navarro during the tests Eager Belle II and Autumn Gold, which were conducted in February, March, May, and June 1963. Fact Sheets for Eager Belle II and Autumn Gold, published by DoD's Office of the Assistant Secretary of Defense (Health Affairs), indicate that the tests released Bacillus globigii (BG), a biological tracer. See http://fhp.osd.mil/CBexposures/pdfs/eagerbelle2_revised.pdf and http://fhp.osd.mil/CBexposures/pdfs/autumn_gold_revised.pdf (last visited September 14, 2012). The Fact Sheets state that BG, now considered to be Bacillus subtilis var. niger, was used as a stimulant and considered harmless to healthy individuals. Id. BG and similar Bacillus species are common in the environment, and are uncommon causes of disease. Id. They have been associated with acute infections of the ear, meninges (brain lining), urinary tract, lung, heart valve, bloodstream, and other body sites, but always or nearly always in individuals whose health has already been compromised. Id. Long-term or late-developing health effects would be very unlikely (except perhaps as a complication of the acute infection). Id. The Veteran's service entrance examination is silent for any notation of a respiratory disorder. The Veteran's respiratory system, to include his chest, nose, throat and mouth, was normal to examination. The remainder of the Veteran's service treatment records document diagnoses of acute sinusitis in March 1960 and rhinitis in June 1963 as well as complaints of and treatment for various respiratory symptomatology, to include sneezing in June 1963 and April 1964, chest pains in May 1963 and February 1965, and a sore throat in February 1964, August 1964, and May 1966. The Board notes that the Veteran was afforded a VA Project SHAD registry examination in August 2003. The examiner stated that the Veteran's claims file was not available for review. On examination, the Veteran's lungs were clear to auscultation without rales, rhonchi or wheezing or rubs and resonant to percussion. An x-ray of the Veteran's chest revealed no acute lung infiltrates. The examiner found the Veteran to have no active cardiopulmonary disease. In March 2004, the RO requested a medical opinion and/or examination in connection with the Veteran's claim. Specifically, the RO asked whether there was a present medical diagnosis shown on the August 2003 VA examination report that could be attributed to the Veteran's claim. In March 2004, a VA physician opined that the Veteran's August 2003 VA examination report addressed all of the Veteran's claimed problems and answered the RO questions. The VA physician stated that the Veteran's claims file was not accessible. Thereafter, the Veteran submitted private treatment records which show that he has been assessed with allergic rhinitis, chronic sinusitis, possible obstructive pulmonary impairment, asthma, and possible emphysema. The Veteran also submitted lay statements which contend that the Veteran has experienced constant problems with lung congestion and throat irritation since his service. See e.g., a June 2001 private treatment record from H.T.W., M.D., a February 2006 private treatment record from T.S.D., M.D. and a May 2006 statement from the Veteran. Pursuant to the Board's April 2010 remand instructions, the Veteran was afforded another VA examination in connection with his claim in August 2010. The examiner concluded that there was no confirmed diagnosis of bronchitis. The examiner stated that she was not sure if COPD had been used to indicate that the Veteran had asthma, given that asthma is a form of COPD. The examiner also stated that there was no other diagnosis, such as emphysema, which could also be referred to as COPD, at this time. With regard to COPD, the examiner stated to refer to her opinion on asthma. The examiner diagnosed the Veteran with asthma, and, after pulmonary function testing, the Veteran was diagnosed with dyspnea. The examiner concluded that it was less likely than not that the Veteran's asthma was manifested during or otherwise caused by his active duty service or any incident therein, specifically including his involvement in Project SHAD and his exposure to Bacillus subtilis var. niger. The examiner stated that her rationale was that, from review of the claims file, although a possible diagnosis of asthma was discussed on prior occasions, asthma was first diagnosed around 2006. The VA examiner noted that this disorder was not treated during active duty service. The examiner stated that Bacillus subtilis var. niger infections usually are associated with trauma or occur in immunocompromised hosts. The examiner further stated that there was no evidence in the literature that Bacillus subtilis var. niger causes asthma, bronchitis, allergic reactions, or COPD. In the December 2010 remand, the Board found the August 2010 VA medical examination and opinion was inadequate. In this regard, the examiner did not properly consider the Veteran's service treatment records documenting assessments of acute sinusitis in March 1960 and rhinitis in June 1963 or the records showing respiratory symptomatology, to include sneezing in June 1963, April 1964, and October 1965. Thereafter, the Veteran's VA claims file was returned to the August 2010 VA examiner who was instructed to render opinions concerning whether the Veteran's allergic rhinitis or sinusitis were the result of his service, to include exposure to chemicals in connection with his involvement in Project 112/SHAD. After another review of the Veteran's VA claims file, the examiner opined that there was no evidence suggesting that the Veteran's respiratory disorders were the result of the Veteran's service, to include chemical exposure during Project 112/SHAD. Further, the examiner observed that, in several records, to include a service treatment record dated in September 1992, the Veteran reported experiencing sinusitis while "in Detroit" in 1958, but specifically denied a recurrence of sinusitis since he "left Detroit." Specifically, the examiner noted a September 1989 record reflecting the Veteran's own assertion that his "last bad case of [sinusitis] was 15 years ago. See the March 2011 VA addendum. In a correspondence dated in June 2011, the Veteran advanced a new theory of etiology for his claimed respiratory disorders. He has argued in a June 2011 letter that his exposure to "stack gas" was a possible cause. Stack gas was defined as the exhaust emissions from older Navy steam powered vessels and the Veteran indicated that this included sulfur dioxide. He included a study conducted by VA on the effects of sulfur dioxide in a Project SHAD website for reference (www.nap.edu/catalog/11900.html). The Veteran reported that he was qualified to perform the research as he was a registered Marine Engineer. He alleged that he and his men were out in the open on deck performing their duties when they were exposed to the exhaust. The Veteran opined that exposure to stack gas was a major contributing factor to his respiratory disorder. In September 2011, the Board noted the nature and extent of the Veteran's reported exposure to stack gas was unknown but found it reasonable to believe that the Veteran had some sort of exposure to stack gas as a result of his naval service. Accordingly, the Board remanded the Veteran's claim to obtain opinions concerning whether the Veteran's rhinitis and/or sinusitis was related to his presumed exposure to "stack gas". Thereafter, the Veteran's VA claims file was transferred back to the August 2010 VA examiner who, after another review of the Veteran's file, opined that the Veteran's sinusitis and rhinitis were not a result of the Veteran's service, to include exposure to sulfur dioxide contained in "stack gas." Further, the examiner stated that the Veteran's asthma, first diagnosed in 2006, was not the result of the Veteran's service, to include exposure to cadmium during his involvement with Project 112/SHAD or sulfur dioxide contained in stack gas. In providing these opinions, the examiner cited several medical treatise articles concerning the affects of exposure to certain dosages of cadmium and sulfur dioxide as reported upon testing by the U.S. Government. Further, the examiner again noted that the Veteran's records from his time in the Naval Reserve reflect his own statements that, while he had experienced sinusitis and various respiratory disorders during his initial period of duty in the Navy, as of 1992, he had not experienced sinusitis "for many years."See the March 2011 VA opinion. The only nexus evidence of record which is favorable to the Veteran's claim resonates from the Veteran. The Board acknowledges that competent medical evidence is not necessarily required where the determinative issue in a case involves medical causation or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009), citing Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet App 303 (2007) (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). Here, the Veteran has variously asserted that his current respiratory disorders are related to his service, to include as due to exposure to "stack gas" or, in the alternative, as due to chemical exposure incurred during involvement in Project 112- SHAD. However, unlike the varicose veins in Barr or dislocated shoulder in Jandreau, the Veteran's various respiratory disorders are not a conditions that can be causally-related to military service or exposure to chemical compounds without medical expertise. Davidson, 581 F.3d 1313; Buchanan, 451 F.3d 1331; Jandreau, 492 F.3d 1372. Thus, the Board concludes that, although the Veteran is competent to report symptoms, his statements as to the origin of his respiratory disorders do not constitute competent evidence. As a layperson, he is not competent to provide evidence that requires medical knowledge because he lacks the requisite professional medical training, certification and expertise to present opinions regarding such matters. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (holding that matters involving special experience or special knowledge require the opinions of witnesses skilled in that particular science, art, or trade). Furthermore, the Board finds that the VA examiner's opinions concerning the etiology of the Veteran's respiratory disorders are more persuasive than the Veteran's statements. The VA examiner conducted a physical examination of the Veteran in August 2010, reviewed the entire claims file three times, recorded the medical history of the Veteran, and provided opinions with a supporting rationale that specifically cited to medical literature and evidence from the Veteran's VA claims file. Thus, the Board finds that the VA examiner's opinions are more persuasive than the statements of the Veteran with respect to the etiology of the Veteran's respiratory disorders. The Board acknowledges that service connection may be established on the basis of continuity of symptomatology. 38 C.F.R. § 3.303(b). As noted above, a lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. However, that same lay person is competent to provide evidence on the occurrence of observable symptoms during and following service. In the present case, the Veteran has asserted that he has experienced symptomatology associated with a respiratory disorder, specifically, "a scratchy throat" since his participation in Project 112- SHAD. See e.g., the Veteran's September 2010 statement. However, as noted above, in the March 2011 and November 2011 opinions, the VA examiner specifically noted records from the Veteran's service in the Naval Reserve dated in September 1989 and September 1992 which reflect no recurrence of sinusitis or rhinitis for extended periods of time. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). In addition, this evidence weighs against of any continuity of symptomatology which may be asserted by the Veteran. The gap in time between instances of experiencing asthma, bronchitis, sinusitis and/or rhinitis also weighs against any continuity of symptomatology. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may consider a prolonged period without medical complaint when deciding a claim). Thus, entitlement to service connection for a respiratory disorder based on post-service continuity of symptomatology must be denied. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(b). In light of the above, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a respiratory disorder. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for a respiratory disorder other than COPD is not warranted. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2011). ORDER Entitlement to service connection for a respiratory disorder other than COPD, to include sinusitis, rhinitis, bronchitis and asthma, to include as due to exposure to "stack gas" or, in the alternative, as due to chemical exposure incurred during involvement in Project 112- SHAD, is denied. ____________________________________________ U. R. POWELL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs