Citation Nr: 1320677 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 04-30 675 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for pulmonary vascular disease (PVD). 2. Whether new and material evidence has been received to reopen the claim of service connection for macular degeneration claimed as vision loss associated with migraine headaches (also diagnosed as cluster headaches). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran had active duty service from September 1951 to September 1955. The appeal was last before the Board of Veterans' Appeals (Board) in June 2012 on appeal from January 2003 and January 2008 rating decisions by the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appealed a November 2008 Board decision denying the claim of PVD to the United States Court of Appeals for Veterans Claims (Court). The Veteran and VA filed a Joint Motion for Remand (JMR) with the Court. In an August 2009 Order, the Court remanded the claim and instructed the Board to address the Veteran's contention that he experienced PVD secondary to Meniere's disease and/or asbestosis. In a June 2010 rating decision, the RO granted service connection for asbestosis and assigned a non-compensable rating. In April 2013, the Veteran submitted pertinent medical evidence, by way of medical statements dated in April 2013, directly to the Board, along with a written statement waiving initial review of this evidence by the RO. A review of the Virtual VA paperless claims processing system reveals additional treatment records dated for December 2012 to March 2013. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal of the Veteran's petition to reopen his claim of service connection for macular degeneration is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. FINDING OF FACT With resolution of the doubt in the Veteran's favor, the Veteran's PVD is the result of his service-connected asbestosis. CONCLUSION OF LAW The criteria to establish service connection for PVD have been approximated. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board will discuss the relevant law which it is required to apply. This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). (2012). The Board grants service connection for PVD. As this represents a complete grant of the benefit sought on appeal with respect to this issue, no discussion of VA's duty to notify and assist is necessary. The Veteran contends that during a June 2000, non-VA hospitalization for back surgery, he sustained a migraine headache which caused dyspnea, which in turn caused a fall. He argues that as a result of this fall, he sustained a pulmonary embolus, which caused PVD. Alternatively, he argues that his now service-connected asbestosis and/or asbestos exposure caused PVD. The Court noted in the August 2009 JMR that the Veteran had claimed entitlement to service connection for PVD, in part, secondary to his service-connected asbestosis. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet.App. 439 (1995). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. STRs do not contain any complaints or treatments regarding any vascular disorder. An August 1955 pre-separation report of medical examination found no abnormalities of the pulmonary, vascular, and neurological systems. Upon discharge, Naval medical authorities assigned him an overall "profile" indicating that he had a "high level" of physical fitness. At the August 2008 videoconference hearing the Veteran reported that he had blood clots from lung surgery. VA treatment records, dated in May 2004, reference the Veteran having pulmonary embolism following back surgery in June 2000. (See also October 2000 VA treatment record). VA treatment records, dated in August 2001, reflect that the Veteran reported that he "blacked out" following back surgery and a health care provider told him this fall triggered his first incident of pulmonary edema. The physician concluded that there were reasonable odds that the Veteran again had pulmonary edema. During treatment for a back disorder, the Veteran asked his physician whether he could relate the blood clots in his leg to a fall. In a letter, dated May 2001, C.H., MD stated that it was quite possible to have a causal relationship between the fall and subsequent development of blood clots, but it was very difficult to determine. A February 2002 VA treatment note reflected that the Veteran had three prior pulmonary embolisms. C.H., MD stated in a July 2002 letter that the Veteran again asked about whether multiple blood clots and pulmonary embolus could be related to his fall in the hospital. C.H., MD opined that it would very unusual for such disorder to arise from a fall. A June 2003 note reflected that the Veteran had a pulmonary embolism after back surgery in 1997. VA treatment records, dated in May 2004, reference the Veteran having pulmonary embolism following back surgery in June 2000. The physician opined that the Veteran had one incidence of pulmonary embolism following back surgery, but no further recurrent pulmonary embolism. An August 2004 VA treatment note indicated that the Veteran did not have recurrent pulmonary embolisms, but one postoperative pulmonary embolism. A January 2006 treatment note stated that the Veteran had not experienced a pulmonary embolism for a year and a half. A May 2007 note stated that the Veteran experienced pulmonary embolisms after back surgery in 2000 and lung surgery in July 2006. An April 2010 VA examiner diagnosed the Veteran with asbestos-related pleural disease. The VA examiner further stated that he could not resolve the issue of whether the Veteran's current PVD (or isolated, past pulmonary embolisms) was related to service without resorting to mere speculation. He explained that there was no current diagnosis of PVD. The last pulmonary embolism was in October 2006 with a prior one that occurred in July 2006. He had a nodule discovered on CT and underwent a wedge resection in July 2006. The examiner stated that the Veteran had co-morbid diagnoses that could lead him to be susceptible to pulmonary embolisms, including a history of lung surgery. He stated that there was no relationship that he could find in medical research between Meniere's disease/migraines and pulmonary embolisms. A November 2010 VA examination noted that the Veteran was recently diagnosed with asbestosis. In 2006, he had a biopsy of a mass that turned out to be the result of asbestos exposure. There was no evidence of a pulmonary embolism. A June 2011 chest x-ray noted, in part, that the left pleural plaque seen previously was consistent with asbestos exposure. A January 2012 VA treatment record noted severe restrictive lung disease suspected to be due to interstitial lung disease secondary to the Veteran's asbestos exposure. A private treatment record from Dr. D.E.M. dated in March 2012 reflects that the Veteran's current had PVD, and that the disorder was the result of surgery performed on his lungs in July 2006 due to asbestos exposure. As noted above, the Veteran was granted service connection for asbestosis in June 2010. A September 2012 VA examination reflects that the Veteran was service-connected for asbestosis, which had progressed to restrictive lung disease/COPD. The VA examiner concluded that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The explanation was that the Veteran was service connected for asbestosis which has progressed to the current severely debilitating respiratory condition requiring home oxygen. He further stated that the Veteran's current severe dyspnea and respiratory condition were all related to his service-connected asbestosis. An April 2013 private medical opinion from Dr. A.B. stated asbestosis was characterized by slowly progressive diffuse pulmonary fibrosis. She observed that in most cases it could take 20 to 30 years before there were any symptoms of the disorder. The symptom most seen was the presence of exertional dyspnea requiring oxygen with the absence of the cough or sputum seen in obstructive disease. She stated that the Veteran was exposed to asbestoses while serving in the military. Since that time he had, in part, progressed to pulmonary fibrosis; a hallmark of asbestos exposure. She further stated that after review of his records and interview with him he had many sequelae related to his asbestosis exposure, including wedge resection of his lung for a pulmonary nodule thought to be malignant and multiple admissions for pulmonary related illnesses like pneumonia. She further stated that critical data was last available that confirmed the asbestosis was a related pulmonary disease. Imaging, including a chest x-ray and CT scan, were interpreted by two different radiologists as asbestosis related changes. Dr. P.M. on October 19, 2010 found pleural plaques on the Veteran's chest x-ray and interpreted these findings as asbestosis related changes. The Veteran had another CT scan on October 27, 2010 by a different doctor who also identified and interpreted the pleural plaques as evidence of previous asbestos exposure. The physician observed that the PFTs done in November 2010 and June 2012 revealed findings consistent with asbestos exposure, which included reduced lung volumes, particularly the vital capacity and total lung capacity. DLCO was decreased as well. The test showed pulmonary fibrotic like changes that indicated decreased pulmonary compliance. These findings were the characteristic lung function abnormalities in patients with asbestosis. She concluded that in her professional medical opinion asbestos exposure was inarguably the direct cause of his current pulmonary condition. An April 2013 private medical addendum from Dr. A.B. stated that she reviewed Dr. C's medical opinion. She opined that his PVD (and past pulmonary embolisms) was a direct result of his active duty service, as a result of his service-connected asbestosis. Further evidence that the Veteran had PVD was seen in an echocardiogram performed in February 2012 showing pulmonary hypertension. She stated that she was not refuting Dr. C's professional opinion, but that she believed that his pulmonary fibrosis was far more of the issue with his severe pulmonary function. She stated that the Veteran was evaluated by Dr. B in January 2012, a board certified pulmonologist and critical care physician. On review of his evaluation he also agreed that his severe lung disease was associated with asbestos exposure. She also mentioned that Dr. G. in her review of the medical records was unable to establish the diagnosis of PVD. However, it was clear from his records that his diagnosis was in fact pulmonary fibrosis and there was no question that his asbestosis was the direct cause of this. She concluded that the Veteran's "diagnosis of pulmonary fibrosis [was] without a double the result of his asbestos exposure during his service in the military." She further stated that despite review of the records from multiple medical professionals that no one informed the Veteran that he had pulmonary fibrosis, which no medical professional could deny was related to his asbestos exposure that occurred during his military service. Another private medical opinion received in May 2013 from Dr. D.B., a pulmonologist, stated that he has treated the Veteran's PVD for years. He concluded that, after review of his records, it was as least as likely as not that his pulmonary restrictive lung disease was a direct result of his service-connected asbestosis. The Board will grant the claim of service connection for PVD under the benefit of the doubt doctrine. A January 2012 VA treatment record noted severe restrictive lung disease suspected to be due to interstitial lung disease secondary to the Veteran's previous asbestos exposure. A private treatment record from Dr. D.E.M. dated in March 2012 reflects that the Veteran's current diagnosis of PVD was the result of surgery performed on his lungs in July 2006 due to asbestosis exposure. The September 2012 VA examiner found that the Veteran's service connected asbestosis had progressed to the current severely debilitating respiratory condition requiring home oxygen. He further stated that the Veteran's current severe dyspnea and respiratory condition were all related to his service-connected asbestosis. An April 2013 written medical opinion from his private physician, Dr. A.B., concluded (with an extensive explanation) that asbestos exposure was inarguably the direct cause of his current pulmonary condition. (See also May 2013 private opinion from Dr. D.B). With respect to the varying diagnoses of record, when it is not possible to separate the effects of the service-connected condition versus a nonservice-connected condition, 38 C.F.R. § 3.102 requires that reasonable doubt be resolved in the Veteran's favor, thus attributing such signs and symptoms to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Given the medical opinions, and the statements from the Veteran, the Board finds that the evidence is relatively equally balanced in terms of whether he has PVD related to military service, and will resolve this reasonable doubt in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Therefore, entitlement to service connection for PVD is warranted. The RO will assign an effective date and an appropriate disability rating in the first instance. ORDER Service connection for PVD is granted. REMAND The Veteran filed a petition to reopen his previously-denied claim of service connection for macular degeneration. Reopening of the claim was denied in January 2008, and the Veteran filed a notice of disagreement in February 2008. A statement of the case was issued in July 2009. In his August 2009 substantive appeal (on VA Form 9), the Veteran requested a hearing at the local RO before a Veterans Law Judge (VLJ). In September 2009, however, he requested a videoconference hearing between the regional office and the Board of Veterans' Appeals. A hearing was not scheduled. The appeal was not certified for review by the Board in August 2008 when the Veteran testified before the undersigned regarding his other pending claims. Under applicable regulations, a hearing on appeal will be granted if a Veteran, or his representative, expresses a desire to appear in person. 38 C.F.R. § 20.700 (2012). Failure to afford the Veteran the requested hearing would constitute a denial of due process and this matter must be remanded. Accordingly, the claim is REMANDED to the RO for the following action: Schedule the Veteran for a videoconference hearing before the Board and provide him notice of the hearing date, time, and location, etc., at his current address. If he fails to report for the hearing and does not provide any reason or good-cause explanation for his absence, then document this in his claims file. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). ____________________________________________ Vito Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs