Citation Nr: 1309952 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 10-48 525 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a respiratory disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1982 to February 1985 and from January 2004 to March 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. A hearing was held on July 10, 2012, before the undersigned Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is associated with the claims file. A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. FINDING OF FACT The Veteran has been shown to have obstructive and interstitial lung disease that is related to her military service. CONCLUSION OF LAW Resolving all reasonable doubt in her favor, the Veteran's obstructive and interstitial lung disease was incurred in active duty service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to obtain the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In the decision below, the Board has granted the Veteran's claim for service connection for a respiratory disorder. Therefore, the benefit sought on appeal has been granted in full. Accordingly, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the appellant has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 38 (1993); VAOPGCPREC 16-92. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. 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 considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for a respiratory disorder. She has contended that her current respiratory disorder is due to the harmful environmental conditions and substances to which she was exposed during the course of her deployment in Iraq. During the July 2012 hearing, the Veteran testified that, during her deployment, she was constantly exposed to burn pits, sand storms, improvised explosive devices (IEDs), and other harmful environmental conditions as a result of carrying out her duties as a truck driver on many missions. She stated that she began experiencing symptoms, including coughing, while deployed, but attributed them to the hazards of her current environment, such as sand storms. The Veteran indicated that she did not have any respiratory problems prior to service and was not a smoker. She also testified that she noticed shortness of breath approximately one and a half years after her separation from service. She testified that her private physician informed her that she had early signs of a respiratory disorder and began treatment and monitoring her for any worsening. The Veteran's service treatment records are negative for any complaints, diagnoses, or treatment for a respiratory disorder. However, her February 2005 post-deployment heath assessment form indicated that she had been exposed to industrial pollution, sand, pesticides, smoke, and dust. Subsequent private medical records dated in May 2009 show that pulmonary function tests were performed. The impression was possible early obstructive pulmonary impairment. Treatment and monitoring were ordered. VA treatment records from August 2009 also document a medical history and complaints of dyspnea. Pulmonary function tests were ordered, and a mild obstruction was noted. In April 2010, the Veteran followed-up with her private physician with complaints of a dry cough. Upon examination, Dr. R.W. (initials used to protect privacy) diagnosed the Veteran with interstitial lung disease and recommended a treatment plan. Pulmonary function tests undertaken in November 2010 further revealed that the Veteran had early obstructive pulmonary impairment. Based on the foregoing, there is evidence that the Veteran had exposure to industrial pollution, sand, pesticides, smoke, and dust during her deployment. There is also evidence that she has a current respiratory disorder. Thus, the remaining question is whether the Veteran's current respiratory disorder is related to such exposure in service. The Board notes that there are conflicting medical opinions associated with the claims file that pertain to the etiology of the Veteran's current respiratory disorder. In this regard, an October 2010 VA examiner opined that the Veteran has a chronic cough that is a symptom of her nonservice-connected gastroesophageal reflux disease (GERD). The examiner based his findings on the fact that the Veteran complained of coughing after meals and with physical stress, such as heavy lifting. The examiner also noted that the Veteran had no dyspnea or shortness of breath on exertion and had normal chest x-rays and normal pulmonary function studies (based on tests and x-rays taken in September 2009 at the VA Medical Center in Huntington). The examiner stated that there was no diagnosis of interstitial lung disease in her VA treatment records and noted that it did not appear on her active problem list. The previous VA examiner who conducted the October 2009 VA examination also found no respiratory diagnosis after conducting x-ray studies and pulmonary function tests. On other hand, the Veteran's private treating physician, Dr. R.W., submitted a letter in February 2011 stating that the Veteran's current early obstructive and interstitial lung disease resulted from her exposure to environmental hazards in service. He based his opinion on his on-going treatment of her for years, a series of pulmonary function tests, and the fact that she was not a smoker and was asymptomatic until she completed her military tour in Iraq. He noted that the Veteran's symptomatology since separation from service included significant shortness of breath, exercise intolerance, and fatigue and that serial pulmonary function tests showed an early obstructive defect. He did not attribute the Veteran's respiratory illness to GERD. The law is clear that it is the Board's duty to assess the credibility and probative value of evidence, and provided that it offers an adequate statement of reasons and bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 Vet. App. 488 (1995) (the Board may adopt a particular independent medical expert's opinion for its reasons and bases where the expert has fairly considered the material evidence of record). The Board, of course, is not free to reject medical evidence on the basis of its own unsubstantiated medical conclusions. Flash v. Brown, 8 Vet. App. 332 (1995). After weighing the medical evidence, the Board finds the February 2011 letter from Dr. R.W. to be more probative than the October 2010 VA medical opinion. In this regard, the October 2010 VA examiner does not appear to have considered all of the relevant facts. He based his opinion, in part, on the fact that the Veteran did not have dyspnea, shortness of breath, or abnormal pulmonary function tests. However, the record does contain evidence of such complaints, and pulmonary function tests have revealed an obstructive defect and early obstructive and interstitial lung disease. The value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). See also Knightly v. Brown, 6 Vet. App. 200 (1994); Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record and conclusions of medical professionals which are not accompanied by a factual predicate in the record are not probative medical opinions). In this case, and based on the foregoing, the Board attaches the greatest probative weight to the February 2011 opinion of Dr. R.W. who based his opinion on the relevant facts and medical evidence. Based on the foregoing, there is at least an approximate balance of positive and negative evidence regarding the issue at hand, and the Board finds that the evidence raises at least a reasonable doubt as to whether the Veteran's current respiratory disorder was incurred in service. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board also observes that the Court has cautioned against seeking an additional medical opinion where favorable evidence in the record is unrefuted. The Court specifically indicated that it would not be permissible to undertake further development if the purpose was to obtain evidence against an appellant's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Thus, for the reasons described above, the Board concludes that there is a reasonable doubt as to whether the Veteran's current respiratory disorder, which has been characterized as early obstructive and interstitial lung disease, is causally or etiologically related to her period of service. To the extent that there is any reasonable doubt, that doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board concludes that service connection for a respiratory disorder is warranted. ORDER Subject to the laws and regulations governing the payment of monetary benefits, service connection for a respiratory disorder, characterized as early obstructive and interstitial lung disease, is granted ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs