Citation Nr: 1315834	
Decision Date: 05/14/13    Archive Date: 05/15/13

DOCKET NO.  07-07 786	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to service connection for left wrist disability, to include a wrist injury with arthritis and scar residuals.

2.  Entitlement to service connection for left hand disability, described as a ganglion cyst.

3.  Entitlement to service connection for a disability characterized by shortness of breath, claimed as lung disability or cardiac disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. Grabia, Counsel


INTRODUCTION

The Veteran served on active duty from January 1980 to June 2002.

This matter has come before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Roanoke, Virginia, Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection, in part, for bronchitis, a ganglion cyst of the left hand, and residuals of a left wrist injury; and granted service connection for sinusitis. 

In December 2010, and June 2012 the Board remanded these issues for additional development, while deciding others.

The Board initially characterized the claim for service connection for bronchitis as a claim for service connection for a lung disability.  Subsequently it was suggested that the Veteran had shortness of breath as the result of other conditions, and the claim was construed as encompassing a disability manifested by shortness of breath.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.

The Board notes that the record raises a claim of service connection for right hand and/or wrist disability.  In fact the Veteran has at times argued that he never had a left hand ganglion cyst and it had always been a right hand ganglion cyst.  In any event this issue was not before the Board and was referred to the agency of original jurisdiction (AOJ) for appropriate action in the December 2010 Board decision.  The only ganglion cyst claim before the Board is for the left hand.  

The issues of entitlement to service connection for a left wrist, left hand and lung disabilities are REMANDED to the RO via the Appeals Management Center.  The Veteran will be advised if further action is required on his part.


FINDINGS OF FACT

1.  The Veteran has shortness of breath as the result of service connected sinusitis.  

2.  The Veteran does not have a current cardiac disability.  


CONCLUSIONS OF LAW

1.  The criteria for service connection for shortness of breath as a manifestation of service connected sinusitis is granted.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310(a) (2012).

2.  The criteria for service connection for shortness of breath as due to a cardiac disability have not been met.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).   

Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328   (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

Here, the Veteran was sent letters in August 2004, June 2005, May 2008, January, February, March, and April 2011 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal.  The letters also explained what type of information and evidence was needed to establish a disability rating and effective date.  The Board acknowledges that complete notice was not issued to the Veteran prior to the adverse determinations on appeal.  

The initial unfavorable adjudication in this case was in December 2005.  However, fully compliant notice was issued later, and the claims were thereafter readjudicated most recently in a January 2013 supplemental statement of the case (SSOC). Thus, any timing deficiency has here been appropriately cured.  Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). 

Accordingly, no further development is required with respect to the duty to notify. 

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claims.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claims, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c) (4). 

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains the service treatment records, as well as all available post-service reports of VA and private treatment and examinations.  Moreover, the Veteran's statements in support of the claims are of record.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence pertinent to the Veteran's claims. 

Additionally, the Veteran was afforded VA examinations in September 2005, May 2011, and July 2012.  The Board finds the examinations in combination, to be adequate, because they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because they describe the claimed disabilities in detail sufficient to allow the Board to make a fully informed determination.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). 

In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA.




II.  Laws and regulations 

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012).

Establishing service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) 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.

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).  Moreover, the provisions of 38 C.F.R. § 3.303(b) apply only to chronic diseases listed in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)).  

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (2012).  Additionally, the provisions of 38 C.F.R. § 3.303(b) have been determined to apply only to the specifically enumerated chronic diseases under 38 C.F.R. § 3.309(a).  Walker, 708 F.3d 1331 (Fed. Cir. 2013)).  

Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181   (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  In doing so, 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).

In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).

Disability characterized by shortness of breath

Service treatment records reveal a history of asthmas and breathing problems; SOB, bronchitis, sinusitis, and hay fever.  

A July 2004 emergency room record reveals the Veteran was involved in a motor vehicle accident.  He subsequently reported SOB, pain, headaches.  His laboratory results were abnormal and he was told to report to the ER.    

Shortly thereafter the Veteran filed a claim which included service connection for rhinitis and bronchitis.  The Veteran is currently service connected for sinusitis (also claimed as rhinitis) and hypertension, each rated as 30 percent disabling.

In a September 2005 fee basis VA examination the Veteran reported sinusitis, bronchitis, and rhinitis for 12 or 13 years.  There was interference with breathing, bronchial orthopenea, and SOB with infection.  A May 2005 nuclear stress imaging study revealed a normal cardiac perfusion, and normal ventricular systolic function.  July 2005 x-rays of the chest revealed clear costophrenic sinuses; no pulmonary infiltration; and normal heart size.  

In a January 2006 private annual physical examination the examiner found no cardiovascular problems.  The cardiovascular system and the lungs were normal.

In a May 2011 fee basis VA examination the examiner noted that he had been requested to schedule a respiratory examination during a time when the Veteran's lung problem was systemic.  As his lung condition was not systemic at the time of examination, no pulmonary examination was performed.

On VA examination in September 2011 the Veteran reported feeling episodic SOB since service.  He reported that he was exposed to fumes and dust onboard ship and in the shipyards during service.  The STRS were noted to reveal many visits for allergic rhinitis and sinusitis.  Service allergy testing revealed multiple moderately severe positive skin tests.  There was a vague antecedent history of asthma in childhood.  The Veteran did not recall any chest or breathing problems prior to his dust and chemical exposure in service.  

STRs were noted to include 1 clinical visit in March 1984 for bronchitis at which time the examiner noted inspirational wheezing.  He was tested with antibiotics and bronchodilator.  In January 1991 the Veteran was admitted to a private hospital reporting SOB.  At that time the diagnosis was acute renal failure with hypertension.  Acute viral syndrome was noted to have preceded the renal failure.  Chest X-rays in 2004 was interpreted as showing atelectatic changes in the lung bases.  Private medical records revealed normal lung fields.  The Veteran's symptoms included SOB with any vigorous activities, especially in weather with smog and/or high pollen count.  He took no medications for breathing and had not consulted any medical facilities.

The examiner noted no history of hospitalization, surgery, respiratory disease, trauma, or neoplasm.  Pulmonary examination revealed no history of productive cough; non-anginal chest pain; fever; respiratory failure; cor pulmonale; pulmonary hypertension; organic pulmonary mycosis, etc.  The PFT was noted to be within normal limits for the Veteran's age.  There was no evidence of airflow obstruction.

The examiner reported that there was SOB, which was associated with upper airway allergies and recurrent sinusitis.  The latter was well documented in the service medical records.  The examiner reported that he could find no clear evidence of chronic lung impairment in the records, history, examination, or pulmonary measurements.  "I think it's more likely that hypertension and ischemic heart disease are causing his reported severe dyspnea with exertion and angina-like chest pain.  I've explained this conclusion to him and urged him to seek medical care for diagnosis and treatment of his problem."

In a November 2011 addendum the examiner added that "in my opinion it is less likely than not that the Veteran has shortness of breath due to lung disease which was contracted during military service.  This opinion is based on my expertise as a pulmonologist, on my examination and interview with the patient, and on my review of all medical records."

The Veteran was afforded a VA examination in July 2012.  The examiner noted that after reviewing the claims file and medical records that the Veteran never had any diagnosis of a heart condition.  His service history included hypertension, history of heart palpations; rhinitis and SOB.  He was followed by Tricare.  There were no recent records.  He reported SOB on walking 30 yards on a good day and 10 yards on a bad day.  He reported a diagnosis of SOB with a history of asthma, allergies and hypertension.  It was unclear when the diagnosis was made.  He used nasal spray. The Veteran stated that he had a cardiac workup including stress test, but was unaware of the results.  Review of the claims file revealed a stress thallium test in 2005.  The results were 10 Mets, and were negative for ischemia.  There was no history of any MI.  The Veteran was treated with no other medication except for antihypertensives.

The examiner noted that the Veteran's heart condition did not qualify within the definition of ischemic heart disease.  There was no history of any MI, congestive heart failure, cardiac arrhythmia, heart valve condition, pericardia adhesions, or infectious cardiac condition.  There was no treatment for a heart condition or history of a heart condition. The examination revealed regular rate, rhythm, and heart sounds. There was no auscultation of the lungs, peripheral pulses were normal and EKG was normal.  

There is no evidence of a heart disorder in service or to a compensable degree within one year after service.  Indeed, heart disease has not been found at any time during or since service.  Although one examiner expressed the offhand thought that the Veteran had shortness of breath attributable to heart disease, that examiner reported no examination or clinical findings indicating the presence of heart disease.  Diagnostic testing and examinations to determine whether the Veteran had heart disease have all been negative.  The opinion that the Veteran's shortness of breath was attributable to ischemic heart disease; is of little probative value because the evidence is against a finding of current heart disease.  As such, the Board concludes that service connection for shortness of breath related to heart disease is not warranted.  

The Board notes in the September 2011 VA examination, the examiner reported SOB, which was associated with the service connected sinusitis.  The examiner also suggested that SOB was also likely caused by the service connected hypertension.  Service connection will be granted for disability that is proximately due to or the result of service connected disease or disability, and the secondary condition will be considered part of the original condition.  38 C.F.R. § 3.310(a).

Reasonable doubt has been resolved in favor of the Veteran where applicable, but the weight of the evidence is against the grant of service connection for shortness of breath on any basis other than as secondary to sinusitis or potentially due to lung disability.  38 U.S.C.A. § 5107(b).







							(CONTINUED ON NEXT PAGE)
ORDER

Service connection for a disability characterized by shortness of breath, as a result of service connected sinusitis is granted. 

Service connection for shortness of breath as a result of a cardiac disability is denied.


REMAND

In its previous remand the Board sought to obtain a medical opinion as to whether the Veteran's claimed left wrist and hand disabilities were related to service.  The Board instructed that the examiner should provide a rationale for these opinions.  The Veteran was afforded a VA examination in July 2012, but the examiner mistakenly indicated that the service records did not report a left ganglion cyst.  She did not find a ganglion cyst on the current examination, and provided a negative opinion.  

The agency of original jurisdiction (AOJ) sought an addendum, pointing out that a ganglion cyst had been noted at the base of the left thumb in service.  In December 2012, the examiner provided an addendum opinion in which she acknowledged the in-service findings, but added that her opinion was unchanged.  She did not provide a rationale for this opinion.

The Board has a duty to insure that its remand instructions are complied with.  Stegall v. West, 11 Vet. App. 268 (1998).  In addition, a medical opinion that is unsupported by a rationale is inadequate.  Nieves-Rodriguez v. Shinseki, 22 Vet App 295 (2008).  A medical opinion that fails to discuss the Veteran's reports of injuries and symptoms is also inadequate.  Romanowsky v. Shinseki, No. 11-3272 (Vet. App. May 9, 2013).  The July and December 2012 opinions are inadequate on all of these grounds.

With the exception of a July 2004, X-ray which yielded an impression of atelectasis or scarring the post-service record is negative for finding of a lung disability.  The United States Court of Appeals for Veterans Claims has recently held in similar circumstances that in order for a subsequent VA examination to be adequate, the examiner must comment on the earlier positive finding, and that the Board is required to determine whether the earlier finding reflected a disability that had resolved during the appeal period or was erroneous.  Romanowsky.  In this regard service connection is available for a disability that resolved during the appeal period.  McClain v. Shinseki, 21 Vet. App. 319 (2007).  Accordingly, the Board is required to seek clarification of the VA examiner's opinion.

Accordingly, the case is REMANDED for following:

1.  Afford the Veteran a VA examination to determine whether any current left wrist or hand disability is related to a disease or injury in service.  The claims folder should be reviewed and the review should be noted in the examination report or addendum.

The examiner must consider that a ganglion cyst was noted at the base of the left thumb during service AND that the Veteran has reported a ganglion cyst "on and off" since service.

The examiner should answer the following questions:

Is it physiologically possible to have a ganglion cyst that appears and disappears absent treatment?

Has the Veteran had a ganglion cyst at any time since 2004?

Has the Veteran had any other left hand or wrist disability since 2004?

Is any left hand or wrist disability identified since 2004 the result of a disease or injury in service, including the identified in-service ganglion cyst?

In answering these questions the examiner must acknowledge the Veteran's reports (including the report of a ganglion cyst that has been "on and off" since service).

The examiner must provide reasons for these opinions.  If an opinion cannot be provided without resort to speculation, the examiner must provide reasons why this is so; and state whether the inability to provide the needed opinion is based on the limits of medical or scientific knowledge or is, instead, due to the absence of specific records.

2.  Ask the examiner who provided the September 2011 VA examination to clarify whether the Veteran has had a lung disability or disease at any time since service.  

The examiner should specifically comment on the July 2004 X-ray findings of atelectasis or scarring and opine whether these findings were demonstrative of a lung disability or disease.  

If the July 2004 X-ray findings were demonstrative of a lung disability or disease, the examiner should provide an opinion as to whether the disease or disability was a result of the lung conditions reported during service.

The examiner should provide reasons for these opinions that go beyond the fact that the examiner possesses expertise to provide the opinion.

If the examiner cannot provide an opinion without resort to speculation, the examiner must provide reasons why this is so; and state whether the inability to provide the necessary opinion is due to the limits of scientific and medical knowledge or, in the alternative is due to the absence of specific records.

If the previous examiner is not available, another physician may review the record and provide the necessary opinions.

3.  If any benefit remains denied, the AOJ should issue a supplemental statement of the case, before the case is returned to the Board, if otherwise in order.

The Veteran 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).

This claim must be afforded expeditious treatment.  The law requires that all claims 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).



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs