Citation Nr: 1309547 Decision Date: 03/21/13 Archive Date: 04/01/13 DOCKET NO. 09-21 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a lung disability, to include bronchiolitis obliterans. 2. Entitlement to service connection for an eye disability, to include epiretinal membrane of the bilateral eyes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran reportedly served in the United States Public Health Service (USPHS) from October 1971 to June 1972. He served in the Navy from June 1972 to April 1974. He reportedly served in the California National Guard. Finally, he transferred to the Air Force Air National Guard (AF ANG) and served on active duty from January to March 1991. The Veteran also served on active duty for training at other points in time prior to his military retirement in December 2007. These issues come before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating action of the Department of Veterans Affairs Regional Office (RO) in Los Angeles, California. In that decision, the RO denied claims of service connection for a lung disability and an eye disability. In September 2012, the Veteran testified before the undersigned at a Board hearing. A transcript of the hearing has been reviewed and is in the file. FINDINGS OF FACT 1. Resolving doubt in favor of the Veteran, bronchiolitis obliterans had its onset during active service. 2. Resolving doubt in favor of the Veteran, an epiretinal membrane had its onset during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bronchiolitis obliterans have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for service connection for an epiretinal membrane have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Because the Board is fully granting the benefit sought, any errors as to notification and assistance are deemed harmless. As a consequence, the Board may proceed with the adjudication of the instant appeal. The Board points out that the RO made inadequate efforts to document the precise periods of active duty for training for the Veteran. The records that are on file, however, are adequate to show that the disorders at issue likely originated during periods of active duty for training. Service connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). The phrase "active military, naval, or air service" from 38 U.S.C.A. § 1110 and § 1131 includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24)(B) (West 2002 & Supp. 2012); 38 C.F.R. § 3.6(a) (2012). As for inactive duty for training (INACDUTRA), service connection is only warranted for an injury incurred or aggravated during such service (injuries include acute myocardial infarction, cardiac arrest, or cerebrosvascular accident). 38 U.S.C.A. § 101(24)(C); 38 C.F.R. § 3.6(a) (2012). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In adjudicating this case, the Board must discuss competency and credibility. A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. 38 C.F.R. § 3.159(a)(2) (2012). Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. Id. It is the Board's principal responsibility to assess the credibility, and therefore the probative value of proffered evidence of record in its whole. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997) (and cases cited within). In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Due consideration shall be given to the places, types, and circumstances of a veteran's service as shown by such veteran's service record, the official history of each organization in which a veteran served, a veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a)(1) (West 2002 and Supp. 2012). When the claim is in equipoise, the reasonable doubt rule is for application. See, 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). Lung disability At the September 2012 Board hearing, the Veteran alleged that he was treated for a lung disability in separate periods of July and August 2007 active duty for training; his claim was for service connection on a direct basis. (Transcript, p 4.) He first joined the Navy in July 1972. Id. The Veteran related his work history as a dentist with military, private practice and at VA. (Transcript, p 5.) He finally ended up practicing in a state institution, but in 1990, he also joined the California National Guard. Id. Then he after three or four years he transferred to the Air Force Reserves (but he said his service was all continuous). Id. When he transferred to the Air Force, he became part of the individual mobilization augmentee (IMA) program. Id. He explained that his shortness of breath symptom started while he was on active duty for training serving for a short period at a dental clinic in Italy in July 2007. (Transcript, p 7.) He noticed it again while on another short period of active duty for training in Germany in August 2007. Id. The file contains Orders for duty via the IMA program in 2007; this includes July 4 to July 30, 2007 Orders to Italy and August 19, 2007 to September 2, 2007 Orders to Germany. The file also contains a January 29, 2008 service history and points statement. The file shows the Veteran denied shortness of breath in a February 2007 report of medical history for retention while only stating that he had hay fever. A copy of his personal calendar shows on about July 25, 2007 his shortness of breath began while he was in Italy. On August 20, 2007, he had a medical appointment and complained of dyspnea. A few days later, he was seen again at Landstuhl. He denied all exposures and an X-ray of the chest was normal. This record noted that bronchiolitis obliterans was a concern with his symptoms. Follow up on the 28th showed the etiology for his symptoms was still uncertain; it was possible he had asthma that had not yet responded to steroids. A record from the 29th noted no improvement. As soon as the Veteran returned home on September 4, 2007, he saw his private doctor and a record noted a complaint of dyspnea. Further medical care showed diagnoses consistent with emphysema (see October 2007 pulmonary function study and November 2007 Dr. V. record), but a November 2007 bronchoscopy was negative. In December 2007, he was treated at a private hospital for a right pneumothorax. In January 2008, Dr. V. wrote a letter stating the Veteran had a process in his lung that made him short of breath. An April 2008 record from Dr. H.C. recommended a surgical lung biopsy because the diagnosis was unclear. He had exposures such as mold in a bedroom wall and a lovebird pet that put him at risk for pneumonitis. It was also noted he was a dentist and had exposures to plastics in dental dentures and some gold casting. He had distant pottery work. He worked in dusty environs and around gas, fumes and chemicals over the years. In June 2008, Dr. H.H. performed a biopsy. The pathology report showed pleural fibrosis and was suggestive of organizing pneumonia. It also showed pleural adhesions and fibrous tissue with inflammation. A July 2008 state medical center conclusively stated the Veteran's right lung, lower lobe biopsy showed a diagnosis of obliterative bronchiolitis (constrictive bronchiolitis) with focal bronchiolectasis and post-obstructive pneumonia. This record stated that the small airway disease was consistent with obliterative bronchiolitis, which may be observed in connective tissue diseases, as post-infectious phenomenon or in fume inhalation or aspiration injury. Regarding etiology, a December 2008 record from Dr. V. noted that the Veteran was a dentist, had some exposures to chemicals and "also worked in the military." Etiology was idiopathic, although exposure to chemicals as a dentist was again brought up. A July 2012 record from C.C.C.C. noted the Veteran had chronic obstructive pulmonary disease and his obliterative bronchiolitis diagnosis, stating: "Etiology is idiopathic although he does have some exposures being a dentist to some chemicals (sic)." An August 2012 note from Dr. L. states he first saw the Veteran for shortness of breath in September 2007 and he was diagnosed with bronchiolitis obliterans in July 2008. Finally, a December 2012 letter from Dr. V. states that because the Veteran stated his symptoms initially began while he was on active duty while in Italy and Germany in 2007; it was his professional opinion that the Veteran was exposed to an unknown etiological factor while in Italy which eventually was diagnosed as obliterative bronchiolitis. As for lay statements, the Veteran's wife explained she met him in Europe on July 24, 2007 for a ten day vacation and noticed at that time that he had trouble carrying their luggage, was fatigued and short of breath. (Transcript, p 15.) The Veteran denied exposure to caustic chemicals. (Transcript, p 26.) The Board finds the Veteran is competent to report the symptoms of bronchiolitis obliterans because shortness of breath and fatigue are within one's own personal experience. See 38 C.F.R. § 3.159(a)(2). His wife is also competent to report what she observed regarding the onset of his symptoms. As for credibility, the Board notes the Veteran and his wife have been consistent on the issue of when his lung disability began. The Veteran has been candid as a whole throughout this claim. The lay statements are assigned great evidentiary weight. Caluza, 7 Vet. App. at 511. The Board finds the evidence sufficient to establish that the Veteran was on a period of active duty for training when the lung disability began. The Board has considered all of the medical evidence and finds there to be a definitive diagnosis of bronchiolitis obliterans as well as medical and lay evidence of in-service incurrence of this disease; the first two elements of Shedden, 381 F.3d at 1167 have been met. The Board also finds the December 2012 opinion of Dr. V. to be appropriate medical evidence of a nexus between the symptoms the Veteran experienced in service and the present disability of bronchiolitis obliterans. Id. As explained above, there are other records which note the bronchiolitis obliterans may be from other exposures. However, when the Board considers Dr. V.'s December 2012 statement as well as the circumstances of the Veteran's service as shown by his service record, the Board finds the claim is in equipoise, the reasonable doubt rule is for application. See, 38 U.S.C.A. §§ 1154(a), 5107(b); 38 C.F.R. § 3.102. Service connection for bronchiolitis obliterans is granted. Eye disability In July 2008, the Veteran asserted in a statement that he had eye surgery while on active duty and on his June 2009 appeal form he stated that his diagnosis and later treatment was given at two Air Force Bases. He had cryoplasty treatment for both eyes at the referral of the optometrist at Kirtland AFB to an ophthalmologist in Albuquerque. In a February 2005 annual medical certificate and reserve health survey, the Veteran reported that he had cryopexy both eyes secondary to vitreous detachments while on active duty for training at Kirtland AFB in July 2004. In February 2007 on his report of medical history form, he reported undergoing bilateral cryopexy in 2004. An April 2007 record for a routine eye examination with the 22nd Medical Group noted an assessment of macular puckering and retinal scar. Duty via the IMA program is shown via orders from May 2, 2004 to May 15, 2004 at Hill AFB in Utah and from June 26, 2004 to July 31, 2004 to Kirtland AFB in New Mexico. An April 2004 record shows the Veteran reported photosensitivity via flashing in his eye. As there were visual changes, evaluation by Dr. C.H. was recommended. A July 1, 2004 service treatment record showed he had a posterior vitreous detachment and had cryopexy in the left eye; a July 29, 2004 service treatment record shows a retinal tear times three in the right eye. A November 2008 letter from Dr. C.H. states he saw the Veteran as a patient from April 27, 2004 to February 2, 2005. Initially, he had a posterior vitreous detachment in his left eye. In June 2004, his visual acuity was 20/20 in each eye. Dr. C.H. saw him again in December 2004 after an ophthalmologist performed a cyroretinopexy for retinal holes. Dr. C.H. stated the Veteran's visual acuity was 20/20 and he had a mild epiretinal membrane; there was no evidence of limitation of function the last time he was examined. The Board finds the Veteran is competent to report his visual symptoms of flashing lights at the Board hearing (Transcript, p 22). See 38 C.F.R. § 3.159(a)(2). The Veteran has been consistent on the issue of treatment for his mild epiretinal membrane. His statements are assigned great evidentiary weight. Caluza, 7 Vet. App. at 511. The Board finds Dr. C.H.'s November 2008 letter provides a diagnosis of mild epiretinal membrane and the July 2004 service treatment records are evidence of in-service incurrence of this disease which satisfies Shedden, 381 F.3d at 1167. While the Veteran initially was seen for flashing lights prior to his service period, when the Board considers Dr. C.H.'s letter as well as the circumstances of the Veteran's service as shown by his service record, the Board finds the claim is in equipoise and the reasonable doubt rule is for application. See 38 U.S.C.A. §§ 1154(a), 5107(b); 38 C.F.R. § 3.102. That is, the Veteran's eye disability began during a period of active duty for training. Service connection for mild epiretinal membrane of the bilateral eyes is granted. (CONTINUED ON THE NEXT PAGE) ORDER Service connection for lung disability is granted. Service connection for bilateral eye disability is granted. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs