Citation Nr: 1312230 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 06-22 737 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUES 1. Entitlement to service connection for a respiratory disorder, to include hypersensitivity pneumonitis. 2. Entitlement to service connection for a sleep disorder, to include as secondary to a service-connected disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. In August 2010 and November 2012, the Board remanded the appeal for further development, and it now returns to the Board for appellate review. The issue of entitlement to service connection for sleep apnea is addressed in the remand portion of the decision below and is remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT A respiratory disorder, to include hypersensitivity pneumonitis, did not have its onset during service and is not the result of disease or injury incurred during the Veteran's military service. CONCLUSION OF LAW A respiratory disorder, to include hypersensitivity pneumonitis, was not incurred in the Veteran's active duty military service. 38 U.S.C.A. § 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION This case was remanded by the Board in August 2010 and November 2012. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). The purpose of the August 2010 remand was to attempt to obtain and associate with the claims file any outstanding service treatment records, private treatment records, and to issue corrective VCAA notice. The RO attempted to obtain service treatment records and provided a formal finding of unavailability in July 2011 documenting their attempts. The Veteran was afforded the correct VCAA notice and additional private treatment records were added to the claims file. In November 2012, the appeal was remanded so that the RO could attempt to obtain records related to a workman's compensation claim and so the Veteran could be scheduled for a VA examination. Information regarding workman's compensation was requested from the Veteran, but not provided, and the VA examination was performed in November 2012. Therefore, the Board determines that the RO/AMC substantially complied with the Board's orders in the August 2010 and November 2012 remands, and that the Board may now proceed with adjudication of the claim. II. VA's Duties to notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claims and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claims. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA requires that VA inform a claimant about the information and evidence not of record that is necessary to substantiate the claim, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353-23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. VCAA notice must be provided before the initial unfavorable AOJ decision on the claims for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with a VCAA notification letter in March 2004, prior to the initial unfavorable AOJ decision issued in December 2004. This notice informed the Veteran of the evidence necessary to establish service connection, of how VA would assist him in developing his claim, and his and VA's obligations in providing such evidence for consideration. The Board notes that the letter did not advise him of the evidence required to substantiate disability ratings and effective dates. This notice was not supplied until after the December 2004 decision; however, the Board finds that no prejudice to the Veteran has resulted from the untimeliness of the notice. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). As the Board decides herein to deny the claim for service connection for a respiratory disorder, any questions as to appropriate disability ratings and effective dates are rendered moot. Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied. See Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims and providing him with a VA examination. The Veteran's service treatment records, VA medical records, private treatment records, and the report of a November 2012 VA examination were reviewed by both the AOJ and the Board in connection with adjudication of the claim. The Veteran has not identified any additional, relevant treatment records the Board needs to obtain for an equitable adjudication of the claim. With regard to the VA examination and opinion, the Board notes that once 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). In this case, the examiner reviewed the claims file, documented the Veteran's subjective complaints and medical history, and examined the Veteran. He then provided an opinion that was supported by a rationale based on all the available evidence, as well as a thorough review of medical literature. Nothing in the record suggests that the opinion was arbitrary or not consistent with the competent 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) . In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claim without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim. III. Analysis Service connection may be granted for disability arising from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a). 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 order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr, 21 Vet. App. at 309. The Veteran contends that his hypersensitivity pneumonitis has been present since service and that it developed as a result of exposure to jet fuel fumes when serving as a jet aircraft mechanic during active duty. Therefore, he argues that service connection is warranted for a respiratory disorder. Initially, the Board notes that the Veteran's service treatment records are silent for any complaint, treatment, or diagnosis related to hypersensitivity pneumonitis or any respiratory disorder. Post-service, in September 1980, he suffered a spontaneous pneumothorax and underwent a thoracotomy; subsequent self-reports of medical history provided at National Guard physical examinations include a history of shortness of breath associated with that event. However, no recurrence or residuals were found on clinical examination. Additionally, the Veteran suffered a post-operative pulmonary embolism after a radical prostatectomy in 1999, also without residuals. Respiratory complaints associated with the hypersensitivity pneumonitis were first documented in 2001. An October 2001 private treatment record shows that a chest CT was performed that showed interstitial lung disease. Therefore, the Veteran has a current disability with regard to this claim. Accordingly, the claim turns on whether there is a relationship between the Veteran's respiratory disorder and his military service. In October 2001, the Veteran's private physician, Dr. Blevins, stated that he wondered if the disease was something inhalational and noted the Veteran's history of exposure to jet fuel. However, an April 2004 treatment note shows that another CT was performed, and Dr. Blevins discovered that the Veteran had four parrots and a macaw at home, which was apparently down from 26 birds including cockatiels that the Veteran and his spouse used to keep. Dr. Blevins notes indicate that he then became suspicious of hypersensitivity pneumonitis related to the birds, and in a January 2005 treatment note, he stated that the hypersensitivity pneumonitis was almost certainly due to bird exposure. He acknowledged the Veteran's exposure to chemicals at work, including jet fuel additives, but stated that he did not think they were etiologic in this case. He reiterated this opinion in April 2005. An open lung biopsy performed in December 2004 revealed interstitial lung disease, and the pathologist indicated that with the positive antibodies for pigeon, hypersensitivity pneumonitis was the most likely diagnosis. Subsequent treatment notes continue to express concern over the Veteran's delay in removing the birds from his home. The Veteran reported in August 2005 that he had gotten rid of the last of the birds. There are conflicting opinions of record with regard to the etiology of the Veteran's respiratory disorder. The Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of material contained in a record; every item of evidence does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996). A January 2005 treatment note by Dr. Strong noted the Veteran's exposure to diesel fuel and rocket fuel at work, but indicated that the birds were the cause of the Veteran's respiratory disorder and that complete avoidance of birds was necessary. In a January 2006 opinion, Dr. Blevins considered the Veteran's decades-long employment with the Department of Defense, which Dr. Blevins stated resulted in exposure to numerous chemicals, solvents, fuels, pesticides, asbestos, and Agent Orange/herbicides, as well as the bird exposure. He then opined that there is no conclusive cause for the Veteran's respiratory disorder, but that there is a less than 50 percent chance that the Veteran's birds caused the hypersensitivity. Dr. Blevins offered a similar opinion in a May 2007 letter. In September 2010, Dr. Blevins stated that the Veteran's birds had been out of the house for at least five years and that the precise cause of his respiratory disorder could not be determined with 100 percent certainty. However, he concluded that there was a greater than 50 percent chance that the occupational exposure the Veteran suffered while working for the National Guard was the main cause of the hypersensitivity pneumonitis. First, the Board notes that Dr. Blevins associates the Veteran's respiratory disorder with his occupational exposure to fumes, not to his in-service exposure. Further, his opinions are overtly contradicted by the private treatment notes. In fact, in a January 2005 note, Dr. Blevins stated that he was concerned that the Veteran had fibrosis already, which would never get better, and that the Veteran was wasting valuable time by not getting rid of the birds, which were the instigating factor. This comment indicates that the Veteran's respiratory disorder had also progressed to its degree of severity simply because of the birds, without reference to his exposure to fuel and fumes in service or otherwise. In addition, the Board notes that both of the January 2006 and May 2007 letters appear to have been written on the Veteran's behalf in support of a workman's compensation claim. Moreover, if Dr. Blevins did not think the birds were the cause of the Veteran's respiratory disability, the Board finds it unlikely that he would have extensively discussed the birds' role in causing the illness with the Veteran and in his treatment notes or insisted that the Veteran give up his birds. For these reasons, the Board determines that Dr. Blevins opinion that the Veteran's respiratory disorder is due to fuel and fumes exposure, whether in service or at any time, carries no probative weight. Additionally, the November 2012 VA examiner opined that it is less likely than not that the Veteran's interstitial lung disease was caused by long-term exposure to jet fuel. In support of this opinion, the examiner cited an exhaustive review of the medical literature that did not reveal any evidence of chronic jet fuel fume inhalation and interstitial fibrosis or demonstrating causation of hypersensitivity pneumonitis by inhaled kerosene fumes. However, the examiner reported that there was abundant literature connecting exposure to birds and hypersensitivity pneumonitis. Based on the above, the Board concludes that a preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a respiratory disorder. The Board has contemplated the Veteran's own statements in support of his claim and notes that under certain circumstances, lay statements may serve to support a claim for service connection by suggesting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, in this case, the appropriate diagnosis and assessment of causation for the Veteran's respiratory disorder is a complex medical question that requires testing and specialized training. Therefore, the Board concludes that the Veteran is not competent to assess the etiology of his hypersensitivity pneumonitis. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, as reflected by the above discussion, the preponderance of the competent evidence is against the Veteran's claim that his respiratory disorder is a result of his military service. Therefore, his claim must be denied. ORDER Entitlement to service connection for a respiratory disorder, to include hypersensitivity pneumonitis is denied. REMAND Regrettably, the Board determines that another remand of the claim for service connection for sleep apnea is necessary. In the November 2012 remand, the Board ordered that the claim of entitlement to service connection for sleep apnea be readjudicated after development and, if denied, a Supplemental Statement of the Case (SSOC) should be issued. However, in the subsequent SSOC issued in February 2013, the only issue addressed was the claim for service connection for a respiratory disorder. Thus, the issue of entitlement to service connection for sleep apnea must be remanded to ensure compliance with the November 2012 remand orders. See Stegall, 11 Vet. App. at 271. Accordingly, the case is REMANDED for the following action: Readjudicate the Veteran's claim of entitlement to service connection for a sleep disorder, to include as due to service-connected disability, and issue a supplemental statement of the case to the Veteran and his representative, affording them an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs