Citation Nr: 1314783 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 08-19 270 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a respiratory disorder other than tuberculosis. 2. Entitlement to service connection for tuberculosis. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESSES AT HEARING ON APPEAL The Veteran and D.M. ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from June 1975 to June 1978. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Veteran had a hearing before the Board in June 2009 and the transcript is of record. The case was brought before the Board in June 2009, February 2011, and October 2012, at which times the claims were remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claims, to include affording him VA examinations. FINDINGS OF FACT 1. A respiratory disorder other than tuberculosis is not related to service. 2. Tuberculosis is not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for respiratory disorder other than tuberculosis are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012). 2. The criteria for service connection for tuberculosis are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304. 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A May 2006 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). That letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a February 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). This matter was most recently before the Board in October 2012, when the case was remanded to the VA RO (via the Appeals Management Center (AMC), in Washington, D.C.). The purpose of this remand was to obtain additional treatment records and to obtain an addendum to the Veteran's June 2012 VA examination. All of the actions previously sought by the Board through its prior development request have been completed as directed, and the Veteran does not contend otherwise. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). In accordance with that remand, the June 2012 VA examiner submitted an addendum to his findings in December 2012. The examiner is shown to have reviewed the Veteran's claims file in its entirety, to have examined the Veteran thoroughly and to have provided a rationale for all opinions provided. The Veteran has not argued, and the record does not reflect, that this examination and opinion were inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). Moreover, additional treatment records have been added to the claims file. Subsequently, a supplemental statement of the case (SSOC) was issued in February 2013, which continued the previous denial. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to include tuberculosis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101 , 1112; 38 C.F.R. §§ 3.307, 3.309. The Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 C.F.R. § 3.304(b). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is 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 include statements conveying sound medical principles found in medical treatises. It also includes 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 is 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). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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 Veteran 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Factual Background and Analysis The Veteran's June 1975 report of medical examination for enlistment noted a normal examination of the lungs and chest. The Veteran's service treatment records indicate he was treated for upper respiratory infection and tuberculosis exposure during his active duty. Chest x-rays done shortly after separation from the military on July 1978, moreover, reveal a "small faint nodular density seen in the right lower chest posteriorly." The Veteran is shown to have had a positive tuberculosis (TB) tine test and a negative purified protein derivative (PPD) test in May 1978. Chest x-rays dated in May 1978 noted an impression of probable primary tuberculosis (TB), resolving. It was noted that the Veteran had a one pack per day smoking history and the note suggests exposure to tuberculosis as a child but that he had subsequent negative tests for TB.. The Veteran was given Isoniazid (INH) prophylaxis treatment and was instructed to continue to take the medication for a year following service. A VA medical record dated July 1986 noted the Veteran's reports that he had symptoms similar to those he experienced in service and had left sided chest pain, a cough productive of sputum. It was noted that the Veteran smoked between 1976 and 1979. A January 1999 VA medical center treatment record noted that a chest x-ray demonstrated no active disease. In a May 2006 VA treatment note, the Veteran noted that he had used marijuana, but had quit in 1992. In January 2009, the Veteran testified at a Board hearing before the undersigned Veterans' Law Judge. During his hearing, the Veteran explained that he experienced shortness of breath and coughing often. He explained that when he was being discharged he tested positive for tuberculosis and that he was treated following service in that he was given pills which he was supposed to take for "a year or two." The Veteran testified, in response to questions pertaining to an unrelated claim, that he was laid off from his job as a truck driver because his knee kept giving out on him and that he was, therefore, slower than his co-workers. See Hearing Transcript, pg 18. In a January 2009 statement, the Veteran's wife submitted a correspondence in which she noted that she was a licensed practicing nurse and that she has had to take care of her husband for twenty-nine years. She stated that the Veteran acquired a pulmonary disease while in the Army and continued to have problems with the condition exhibited by coughing and expectorating blood-tinged mucus. An April 2009 sleep disorder consultation note reported that the Veteran's respiratory data was likely consistent with upper airway resistance syndrome. In a June 2009 letter, private physician Dr. M.P. noted that the Veteran was seen for progressive shortness of breath which he had experienced for several years. Dr. M.P. noted that the Veteran contracted pulmonary tuberculosis while in the Army in 1978. It was also noted that the Veteran reported having smoked a few cigarettes a day for two years but quit thirty years prior. Dr. M.P. noted that a CT of the chest performed in January 2009 demonstrated scarring and atelectesis on the upper lobe of the left lung. Dr. M.P. stated that the Veteran had pulmonary fibrosis and decreased lung function resulting in scarring. He stated that, in his opinion, the Veteran's condition was caused during his time in military service. The Veteran was afforded a VA examination in September 2009. During his examination, the Veteran reported that he smoked about one pack per day for a year but quit thirty years prior. It was noted that the Veteran had a positive PPD history and received INH and vitamin B-6 when he got out of service about thirty years prior; he was treated for latent TB but was not hospitalized. The Veteran described getting short of breath after walking six blocks and that he used an inhaler. It was noted that the Veteran had never had active TB. On physical examination, the Veteran's lungs were clear, it was noted that July 2009 CT scans demonstrated no evidence of pneumonia or significant atelectesis but did demonstrate a new three millimeter nodule in the middle lobe, likely post inflammatory. There was no change in a two millimeter nodule in the left lower lobe adjacent to the major fissure. An October 2008 CT scan also demonstrated no acute infiltrates of effusions. A diagnosis of COPD was provided. The examiner noted that the Veteran did not have any active TB or residuals from positive PPD status and latent TB and that there was no pulmonary fibrosis found on the recent CT scan done by VA as was described by Dr. M.P in June 2009. In an August 2010 treatment note Dr. M.P. reported that the Veteran had pneumonia which he contracted while in the Army and that it was more probable than not that the Veteran's interstitial lung disease with pulmonary scarring was due to pulmonary scarring as a result of pneumonia during his military service. In an April 2011 VA examination for an unrelated condition, the Veteran explained that after his service in the military he worked as a corrections officer for about ten years and thereafter as a truck driver but was fired from both positions due to drug possession. The Veteran further explained that he used to smoke marijuana on his way to work as a corrections officer to reduce his anxiety and hypervigilance. At a VA examination in June 2012, the Veteran explained that he was exposed to tuberculosis in the military. He stated that he was found to have a positive PPD testing and was placed on prophylactic treatment for one year, he denied having any treatment for active TB. The Veteran stated that he had ongoing shortness of breath since leaving service. The examiner noted that chest x-rays conducted in May 2012 were clear and that there was no evidence of old tuberculosis. A diagnosis of no active TB was provided, the examiner stated that the in-service probable primary tuberculosis did not represent active tuberculosis but instead TB exposure which was successfully treated prophylactically. It was noted that there was no evidence of treatment for active TB during or after service. The examiner stated that, therefore, the Veteran did not have any current respiratory condition that was related to in-service treatment. It was noted that the Veteran still had ongoing symptoms of shortness of breath and had been diagnosed with chronic bronchitis. The examiner noted that the Veteran did give a history of smoking and that the Veteran's current respiratory condition with chronic obstructive pulmonary disease and chronic bronchitis was most likely related to that smoking history. In a statement in support of his claim dated October 2012, the Veteran explained that the findings that his lung problems were due to smoking was false as he only smoked for three months, during his last three months of service. He stated that he felt that the direct cause of his lung problem was caused by his use of a printing press and other printing machines which used a toxic chemical called "blanket wash." In accordance with the Board's October 2012 remand, the June 2012 VA examiner provided greater detail in a December 2012 addendum to the examination. The examiner noted that the Veteran's claims file was reviewed and concluded that the Veteran's condition was less likely than not incurred in or caused by an in-service, injury, event, or illness. The examiner explained that while the Veteran had a positive TB tine test in 1978, there was no evidence of active tuberculosis and that the Veteran had a negative PPD test in a subsequent evaluation. It was noted that the Veteran was instructed to take INH therapy for prophylaxis which was not considered treatment for pulmonary tuberculosis and that the Veteran was found to have upper respiratory infections and bronchitis in service which were self-limiting episodes which did not show evidence of residuals. He stated that therefore, there was no evidence of any active pulmonary tuberculosis or any chronic respiratory infection that existed during military service. The examiner noted that the Veteran was smoking during that time and was instructed at that time to quit. The VA examiner noted that he reviewed the records of Dr. M.P. and that Dr. M.P noted a finding in January 2009 of atelectesis. The examiner noted that this was a nonspecific finding which did not indicate any active pulmonary process and noted that a subsequent CT done in July 2009 did not show any significant atelectesis and that recent chest x-ray conducted in May 2012 showed clear lungs. It was noted that VA examination in July 1978 showed faint nodular density but that repeat testing in September 1978 was normal, indicating that the faint density was not significant, was transient, and did not cause any chronic residuals. The examiner stated that, therefore, there was no evidence of any chronic pulmonary disease, infections that had occurred in military service and that the Veteran's current lung condition was less likely related to service including treatment for bronchitis, upper respiratory infections, allergic rhinitis, or tuberculosis. Analysis The Veteran has contended throughout the period of appeal that in-service pulmonary symptoms and positive tests for tuberculosis caused his present lung disorders. Far more recently, in October 2012, the Veteran additionally asserted that exposure "toxic chemicals called blanket wash" used in a printing press caused his lung conditions. At the outset, while the service treatment records suggest there may have been childhood exposure to tuberculosis, this is based on a single report by the Veteran and is not obvious and manifest evidence of a pre-service disorder. In any event, the presumption of soundness is not rebutted and he is considered to be of sound condition at the time of enlistment. 38 C.F.R. § 3.304(b). Further, as active tuberculosis has not been demonstrated during any time, presumptive service connection based on 38 C.F.R. § 3.309 is not applicable. Thus, service connection may only be established on a direct basis. In order to establish direct service connection, the evidence must demonstrate an in-service incurrence of a disease, a present disease and a link between the two. Presently, the evidence includes evidence of pulmonary symptoms in service and evidence of a current disorder; thus, the issue revolves primarily around whether or not there is a nexus between the Veteran's present pulmonary conditions and his service, or whether the evidence of record is at least in equipoise. In determining whether this is the case, the Board, as finder of fact, determines whether evidence is credible and competent and then weighs the evidence for the Veteran's claim with that against it. Turning first to the lay evidence of record, which consists primarily of the Veteran's own assertions that he experienced lung problems in service and since service and that his present lung conditions are due to his service, the Veteran is found to be neither credible nor competent. In October 2012, the Veteran suggested that his lung disorders were due to exposure "blanket wash" chemicals while working on a printing press in service. The Veteran is not, as a lay person, competent to opine that a lung disorder is related to such claimed exposure as such a finding is not capable of observation and requires medical expertise. There is absolutely no competent evidence whatsoever, either during or after service, that suggests that the Veteran's lung disorders are related to his work at a printing press, the evidence weighs against that avenue of service connection. The Veteran is, as a lay person, competent to testify about observed symptoms such as shortness of breath, chronic coughing, or chest pain. However, the Board does not accept the Veteran's statements to be credible. Initially, the Veteran's reported medical history is inconsistent. The Veteran has, at times, reported a short smoking history, noting in an October 2012 statement, that he only smoked during the last three months of his service. The record includes service treatment records which note a pack per day history, 1986 reports note that the Veteran smoked between 1977 and 1979 and the Veteran is shown to report in later treatment records a one-year or two-year smoking history. Significantly, the Veteran appears to have under-reported his smoking to his private physician, Dr. M.P., and the Veteran did not mention a history of marijuana smoking to his physicians when receiving treatment for his pulmonary conditions. Moreover, the Veteran, during his Board hearing, testified that he was laid off from his job as a truck driver due to his knee disorder and told his April 2011 VA examiner that he was fired due to drug possession. Thus, it appears that the Veteran has tailored his assertions to suit the benefit he seeks. The Veteran is, therefore considered wholly incredible and his statements cannot, therefore, support his claim. While Dr. M.P., as a physician, is competent to testify that the Veteran's symptoms are related to his service, his medical opinion is also afforded less weight than it would otherwise be due to the fact that his medical opinions rely heavily on the Veteran's related history which is found to lack credibility. Dr. M.P. is not shown to have reviewed the Veteran's service records or VA treatment records, but instead relies upon the Veteran's claims that he had active pneumonia and tuberculosis during service and relies on the Veteran's under-reported smoking history. The Veteran's wife has noted that she is a licensed practicing nurse and, while her expertise is not clear, her testimony could be competent to relate the Veteran's pulmonary symptoms to service. However, as she was not married to him at the time of his service, or for several years thereafter, her statements as to onset are based soled on the Veteran's statements. The Board is not bound to accept medical opinions that are based solely upon the Veteran's statements or are based upon an inaccurate factual background. As these medical records rely upon the Veteran's statements which lack credibility, these opinions are of no probative value as to the issue of onset. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Swann v. Brown, 5 Vet.App. 229 (1993). In contrast, while the physician who conducted the June 2012 VA examination considered the Veteran's own assertions, he also thoroughly considered the Veteran's service treatment records, the Veteran's claims file, and the findings of Dr. M.P. The VA examiner concluded that the Veteran's present lung conditions are not related to his service and, of great significance, that active tuberculosis has never been shown by the record. The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). The VA examiner's opinion is given substantial weight as it is supported by a review of the entire record and a thorough rationale. Conversely, the opinions of Dr. M.P and the Veteran's wife do not demonstrate a thorough review of the record and rely on the Veteran's non-credible assertions. The preponderance of the evidence is against establishing service connection for tuberculosis or any other respiratory disorder; there is no doubt to be resolved, and service connection for tuberculosis or for any other respiratory disorder is not warranted. ORDER Entitlement to service connection for a respiratory disorder other than tuberculosis is denied. Entitlement to service connection for tuberculosis is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs