Citation Nr: 1315797 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 01-08 088 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a lung disorder. 2. Entitlement to service connection for a psychiatric disorder to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to April 1970 and from August 1990 to September 1990. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In February 2002, the Veteran testified at a Travel Board hearing before the undersigned; a transcript of the hearing is of record. In November 2003, May 2008, and May 2009, the Board remanded the case for further evidentiary development. In May 2010, the Board denied entitlement to service connection for a lung disorder and the Veteran appealed. In a January 2012 Memorandum Decision, the United States Court of Appeals for Veterans Claims (Court) vacated the May 2010 decision and remanded the matter to the Board for action consistent with its order. In June 2012, the Board requested a medical opinion from the Veterans Health Administration (VHA). In July 2012, a VA physician provided the requested opinion. In November 2012, the Board requested a addendum opinion from the VA physician, which was provided in January 2013. The Veteran and his representative were sent copies of the opinion and addendum. They were also informed that they had 60 days to submit further evidence or argument. See 38 C.F.R. § 20.903 (2012). In December 2012 and April 2013, the Veteran and his representative submitted additional argument and medical evidence in response along with a waiver of initial consideration of this additional evidence by the agency of original jurisdiction. 38 C.F.R. § 20.1304(c) (2012). The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the electronic claims file does not reveal any additional relevant records. The issue of entitlement to service connection for an acquired psychiatric disorder to include PTSD 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 chronic lung disorder was not demonstrated in service and the competent medical evidence preponderates against finding that the Veteran's current lung disorders are related to service, to include treatment for an upper respiratory infection/bacterial bronchitis therein. CONCLUSION OF LAW A lung disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 20012); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Regarding the Veteran's claim of entitlement to service connection, the requirements of 38 U.S.C.A. § 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or the completeness of the application. VA notified the Veteran in August 2001 and January 2004 of the information and evidence needed to substantiate and complete the claim, to include notice of what part of that evidence is to be provided by the claimant, and what part VA will attempt to obtain. VA notified him of how disability ratings and effective dates are determined in 2008. The matter herein decided was readjudicated most recently in a February 2010 Supplemental Statement of the Case. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims, and as warranted by law, affording VA examinations. In January 2012, the Court determined that the medical opinions provided in the April 2007 and December 2009 VA examination reports were inadequate. As mentioned, the Board sought a VHA opinion and addendum opinion by a VA physician, which were received in July 2012 and January 2013, respectively. The VA physician reviewed the claims file, noted the pertinent medical history, and provided a medical opinion. In January 2013, the VA physician provided detailed supporting rationale. For these reasons, the Board finds that all questions necessary to render the determination made herein have been answered. The medical examinations, along with the VHA medical opinions, are therefore adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (defining adequacy with respect to medical examinations and opinions as those providing sufficient detail so that the Board can perform a fully informed evaluation). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Legal Criteria Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013) (noting that the continuity of symptomatology provisions apply only to the chronic disorders as listed in 38 C.F.R. § 3.309(a)). Service connection may 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis The Veteran contends that he developed a lung disorder, to include histoplasmosis, as a result of his service. A review of the record shows that the Veteran has been diagnosed with chronic obstructive pulmonary disease, chronic bronchitis, and x-rays have revealed an 8mm granuloma in his right lower lung. There is no indication he was ever diagnosed with histoplasmosis. The Veteran served from May 1969 to April 1970 without any symptoms of, treatment for, or complaints of a breathing disorder. The appellant served on active duty again from August to September 1990, and contends that his current lung disorders are due to this second period of active duty. He has testified that treatment in September 1990 for bacterial bronchitis was the beginning of his current lung disabilities, and that he has had bronchitis on and off ever since. Notably, physical examination reports conducted during the appellant's service in the reserves from November 1993 and October 1998 revealed that he had clinically normal lungs and chest. Moreover, the Veteran did not make any pulmonary complaints during these evaluations. Regarding his period of service in 1990, the Veteran reports that he and other members of his unit fell ill after cleaning a hangar filled with pigeon feces while in the United Arab Emirates. In attempting to verify this event the Board received an August 2009 letter from the Air Force Historical Research Agency. This letter indicates that members of the Veteran's unit who were delayed in the United Kingdom for a week cleaned a hangar of pigeon feces, but that the Veteran was not delayed in the United Kingdom. Hence, he was not a part of the group who cleaned the hangar. While the Veteran has supplied a corroborating statement from a fellow serviceman (G.L.), the Board finds the Air Force research to be more credible. As such, the Board finds that the Veteran did not participate in the removal of pigeon feces. Regardless, upon return to the United States in September 1990, he was treated for three days for "upper respiratory tract infection/bacterial bronchitis." He was noted to have a 5-pack/year history of smoking and was instructed to stop smoking during this treatment. A private record from March 1992 noted the Veteran had a 20-year pack-a-day history of smoking cigarettes. In July 1997, the Veteran complained of pulmonary congestion without fever. He reported smoking one pack of cigarettes every 3-4 days. A chest x-ray revealed a small calcified granuloma in his right lung. He was diagnosed with bronchitis. In August 1999, he was diagnosed with mild chronic bronchitis, and the 8mm calcified granuloma was again noted in this right mid lung. In May 2001, he was again diagnosed with bronchitis, and reported he had quit smoking. In April 2007, the Veteran was afforded a VA examination. He reported a history of sinusitis and bronchitis beginning as early as 1986. He also reported a 36 year pack a day smoking habit. The examiner took this information to mean that the Veteran entered service with a history of chronic bronchitis, which was incorrect. While service treatment records show one complaint of sinus symptoms in 1986, there is no evidence the Veteran was diagnosed with bronchitis prior to his September 1990 treatment. The Veteran was diagnosed with recurrent sinusitis and bronchitis, mild asthma, and asymptomatic incident benign granuloma. An August 2007 chest x-ray revealed an eight millimeter granuloma and a small anterior paratracheal precarinal adenopathy. The impression was chronic obstructive pulmonary disease/asthma/history of recurrent bronchitis/right lung granuloma. A May 2008 VA pulmonary consultation record notes an impression of chronic obstructive pulmonary disease and lung granula. A note was also made to rule out histoplasmosis. In December 2009, the Veteran was afforded an additional VA examination. Again, the examiner incorrectly assumed the Veteran's lung disorders preexisted his 1990 service. She diagnosed "chronic asthmatic bronchitis (chronic obstructive pulmonary disease)" which she described as "mild." She opined that this was not due to histoplasmosis or military service. She also noted that his right lung granuloma was incidental and asymptomatic. A December 2009 private treatment record from Sacred Heart Medical Center reflects the Veteran's complaints of a one-week history of congestion and coughing up yellow-green phlegm. The assessment was chronic obstructive pulmonary disease exacerbation and bronchitis. He was treated with antibiotics for one week. In July 2012, a VA physician (Dr. A.A.) provided a VHA opinion. The physician opined that it was not likely that the Veteran's chronic bronchitis, chronic obstructive pulmonary disease, calcified granuloma were incurred in or the result of his September 1990 upper respiratory tract infection/bacterial bronchitis. In January 2013, he explained that according to medical authority, chronic bronchitis is defined as the presence of cough and sputum production at least three months in each two consecutive years. The VA physician found that the evidence did not show that the Veteran met the definition of chronic bronchitis . Rather he had intermittent episodes of worsening upper and lower respiratory symptoms that were not a risk to develop a chronic condition. Regarding chronic obstructive pulmonary disease, the VA physician explained the medical standards for diagnosing the disease and noted that the Veteran had a significant smoking history and that symptoms did not arise until after military service. Regarding the calcified granuloma, the VA physician explained the disorder was clearly a benign lesion based on relevant medical authority and was an incidental finding that would not produce any symptoms or adversely affect his ability to breath. In an April 2013 letter, a private physician, W.H., M.D., reported that the Veteran had been treated for several years for mild to moderate chronic obstructive pulmonary disease. He noted that the Veteran's military history involved cleaning up pigeon feces in a hanger followed by respiratory symptoms. He noted that the appellant reported that he continued to have problems since that exposure in 1990. The physician opined that it was likely that the exposure "initiated a chronic inflammatory process in his airways" and that it was "at least as likely as not that [the Veteran's] chronic obstructive airway disease was caused by his exposure, as noted above, while on active duty." At the outset, the Veteran is competent to report that which he personally experiences, including cleaning pigeon feces and being treated for respiratory complaints in service. He is also competent to report that he has had continued respiratory problems since. See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 470 (1994). As noted above, however, the Board finds that the Veteran's statements regarding his in-service exposure are not credible. In this regard, the Board finds the research conducted by the Air Force more probative. The Air Force Historical Research Agency at Maxwell Air Force Base reviewed the unit history, including deployment records, and determined that the Veteran was not part of the contingent that cleaned the hangars and was exposed to pigeon feces in the United Arab Emirates. The Board acknowledges that the Veteran submitted a lay statement from a fellow service member attesting to this fact; however, the Board defers to the agency's expertise in this area and its review of the contemporaneous unit history and deployment records, which are more probative than lay statements submitted in connection a claim for benefits. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may be found to affect the credibility of testimony.) The Board also finds the Veteran's reports of continuity of symptomatology not credible. As noted, he received two days of treatment for an upper respiratory tract infection/bacterial bronchitis. He was given a cough suppressant, antibiotics, an antihistamine/decongestant, and Bronchicum elixir. The following day, it was reported that his symptoms had greatly improved. It was noted that he had occasional wheezes in the upper lobes of his chest. He was discharged and relieved from duty for 24 hours. There was no follow-up treatment. At November 1993 and October 1998 periodic examinations, his lungs and chest were normal and he denied having had or then having shortness of breath or chronic cough. This evidence raises grave doubts as to the credibility of the Veteran's assertions that he has had continued respiratory problems since being treated for bacterial bronchitis in-service in 1990. Rather this evidence supports the conclusion that the upper respiratory infection/bacteria bronchitis was acute and transitory. He was treated with antibiotics, his symptoms improved, and there were no residual respiratory problems noted about three years later in 1993 or about eight years later in 1998. The Board emphasizes that this is not simply a case in which there is an absence of clinical evidence supporting continuity of symptomatology, but rather there are normal findings and a denial of history of symptoms in 1993 and 1998. The preponderance of the evidence reflects that the Veteran's chronic bronchitis, calcified granuloma, and chronic obstructive pulmonary disease did not manifest in service. Furthermore, there was no continuity of symptomatology following treatment for an acute infection in service. Hence, the only remaining question is whether there is a nexus between the Veteran's service and his respiratory disorders. See 38 C.F.R. § 3.303(d). The Board acknowledges that competing competent evidence has been presented addressing this question. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. See also Obert v. Brown, 5 Vet. App. 30 (1993); Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board finds the VHA opinions provided in July 2012 and January 2013 that the Veteran's current lung disorders are less likely than not related to service, to include the acute upper respiratory infection/bacteria bronchitis treated therein, as highly probative medical evidence on this point. The VA physician rendered these opinions after thoroughly reviewing the claims file and medical records, to include the Veteran's assertions regarding his exposure to pigeon feces and continuity of symptomatology. Furthermore, the VA physician provided detailed rationale for his opinion which included citation to pertinent medical literature. The Board finds these opinions highly probative. By contrast, Dr. W.H. did not indicate that he had the opportunity to review the Veteran's claims file. Moreover, his opinion was based on the Veteran's reports that he was exposed to pigeon feces in service, developed respiratory symptoms, and has had ongoing respiratory problems ever since. As explained above, the most probative and credible evidence does not show that the Veteran was exposed to pigeon feces or has had ongoing respiratory problems since service. In this regard, the Board has found the Veteran's statements not credible. Because the physician's opinion was based on an inaccurate factual premise, it has little, if any, probative value. As noted by the Court, the VA examiner's opinions as articulated in the December 2007 and December 2009 examination reports incorrectly assumed that the Veteran's lung disorders preexisted his service in 1990. Hence, they are inadequate and have little, of any, probative value. The Board considered the Veteran's lay contentions that his lung disorders are related to service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the etiology of his lung disorders, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." The question of etiology in this case goes beyond a simple and immediately observable cause-and-effect relationship. Even assuming the Veteran's lay assertions regarding etiology were competent, the Board finds the VHA opinions discussed in detail above are more probative. For the foregoing reasons, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for a lung disorder. The benefit of the doubt doctrine is not for application, and the claim is denied. See 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a lung disorder is denied. REMAND In a February 2011 rating decision, VA denied entitlement to service connection for PTSD. In August 2011, the Veteran submitted a timely notice of disagreement. A review of the claims file and Virtual VA does not reflect that a statement of the case has been issued. The Court has held that an unprocessed notice of disagreement should be remanded, not referred, to the RO for issuance of a statement of the case. Manlincon v. West, 12 Vet. App 238, 240-241 (1999). Accordingly, the case is REMANDED for the following action: Issue the Veteran a statement of the case addressing the claim of entitlement to service connection for an acquired psychiatric disorder to include PTSD. The appellant is hereby informed that the Board will exercise appellate jurisdiction over this claim only if he files a timely substantive appeal. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs