Citation Nr: 1322684 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 11-28 968 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II. 2. Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD). 3. Entitlement to service connection for lumbar spinal stenosis with radiculopathy. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1952 to August 1954, during the Korean War. He received the Combat Infantry Badge. These matter come to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2011 by the RO. The Board notes that, when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. As such, the Board has recharacterized the issue of service connection for a respiratory disability to include COPD to account for any pulmonary disability he might have. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Board remanded the case in March 2012 and January 2013. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran is not shown to have manifested complaints or findings referable to diabetes mellitus or low back degenerative changes or spinal stenosis with radiculopathy until many years after service. 2. The currently demonstrated diabetes mellitus and low back degenerative changes and spinal stenosis with radiculopathy are not shown to be due to an event or incident of the Veteran's period of active service. CONCLUSION OF LAW 1. The Veteran's disability manifested by diabetes mellitus is not due to disease or injury that was incurred in or aggravated by active service; nor may it be presumed to have been incurred therein. 38 U.S.C.A. § 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The Veteran's back disability manifested by lumbar spine degenerative disease and spinal stenosis is not due to disease or injury that was incurred in or aggravated by active service; nor may arthritis be presumed to have been incurred therein. 38 U.S.C.A.§§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). A July 2010 VCAA letter explained the evidence necessary to substantiate the claims for service connection. This letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Additional VCAA letters were sent in October 2010 and February 2011. In addition, the July 2010 VCAA notice letter from VA was provided prior to initial adjudication of the Veteran's claims and explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With regard to the duty to assist, the claims file contains reports of post-service treatment and reports of VA examinations. See 38 U.S.C.A. § 5103A(a)-(d). The Board notes that the Veteran's service treatment records have not been associated with the claims folder, and the National Personnel Records Center (NPRC) indicated that these records were destroyed in a fire at the facility in 1973. The Board is mindful that, in a case such as this, VA has a heightened obligation to assist the Veteran in the development of his claim. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In January 2013 the Board remanded this matter for the RO to provide the Veteran an examination as to the nature and likely etiology of the claimed disabilities. The RO/AMC has complied with these remand instructions and the VA examination report and treatment reports are of record. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran underwent VA examinations in May 2013. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. There is no indication in the claims file that there are additional available relevant records that have not yet been obtained. Analysis In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection will also be presumed for certain chronic diseases, including diabetes mellitus and arthritis, if manifest to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309(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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. However, 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); 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 claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102. The Board further recognizes the Veteran's combat status, as indicated on his DD Form 214. In the case of any veteran who engaged in combat with the enemy in active service, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service incurrence if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation, and, to that end, every reasonable doubt shall be resolved in favor of the veteran. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). Diabetes Mellitus The Veteran claims that he developed diabetes mellitus as the result of service. Specifically, he asserts that performing active service under conditions in a combat zone, such as no running water, electricity or plumbing,, caused his current disabilities. At the outset, the Board acknowledges that the service treatment records in this case are unavailable and presumed destroyed in a 1973 fire at the National Personnel Records Center (NPRC). The attempts by the RO to obtain the service treatment records have been unsuccessful. The Board notes that VA has heightened duties when the Veteran's service treatment records have been destroyed. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). However, the case law does not establish a heightened benefit-of-the-doubt standard, only a heightened duty of the Board to consider applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). Significantly, an April 1999 private examination report included no complaints or findings referable to diabetes mellitus. The treatment reports from the Veteran's private physician, Dr. WMP, dated from 2007 to 2010 indicated that the diabetes mellitus was controlled. In a June 2011 letter, Dr. WMP, stated that he had been treating the Veteran for many years and that his diabetes mellitus "could have been worsened" by the his service in the Korean War. In response to the Board's January 2013 remand, the Veteran was afforded a VA examination in May 2013. On examination, the VA examiner confirmed the diagnosis of diabetes mellitus, type II and concluded that it was less likely than not that the Veteran's diabetes mellitus was a result of his period of service. As a rationale, the examiner stated that the first post-service evidence of diabetes mellitus was in March 2007, more than 50 years after service. The VA examiner acknowledged the June 2011 medical statement and indicated that there was no literature to support it. In addition, the evidence, including the Veteran's own statements, does not serve to establish a basis for linking the development of the claimed diabetes mellitus to his time in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Indeed, during the May 2013 VA examination, the Veteran himself stated that the diabetes mellitus did not originate in service. To the extent he generally asserts that the diabetes mellitus may have been present since service, this is clearly not supported by the record. In addition, the June 2011 statement provided by Dr. WMP is found to be of limited probative value due to the fact that it is vague and unsupported by any rationale as to why the diabetes mellitus could have been "worsened" by the Veteran's serving in combat in Korea many years prior to the clinically onset of the condition. On this record, a theory of service aggravation is not supportable. The statement did not indicate the reasons for the conclusion reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (neither a VA examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions; most of the probative value of a medical opinion comes from its reasoning). The most probative opinion of record weighs against the claim. The Board finds the May 2013 VA examiner opinion to be competent and highly probative as the examiner reviewed the claim file and took a detailed history from the Veteran. With the available information, including the Veteran's lay assertions, the examiner concluded that the Veteran's current diabetes mellitus was less likely than not related to service. Likewise, there is no evidence showing the diabetes mellitus was manifested in service or to a compensable degree within one year of separation from service. In fact, as noted, the evidence reveals that the Veteran was not diagnosed with diabetes mellitus until 2007, over 50 years following service. Moreover, the Veteran does not assert that the condition was manifested during service or within the presumptive one-year time period. Thus, service connection is not warranted on a presumptive basis. The Board concludes that the preponderance of the evidence is against the claim of service connection for diabetes mellitus. As such, the benefit-of-the-doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Back Disorder The Veteran asserts that his back disorder is due to his period of active service. On VA examination in May 2013, the examiner diagnosed spinal stenosis of the lumbar region. It was noted that the Veteran provided conflicting history about the onset of back pain in that he reported having back pain in service and then added that the back pain began in 1970 while he was working as a teacher. The Veteran reported having mild left lower extremity radicular pain. Upon review of a 2011 MRI, the examiner diagnosed mild degenerative disc disease. It was also noted that the Veteran reported that he had back pain in service but never went in for treatment. After considering the entire record, including the Veteran's lay assertions, the examiner opined that the Veteran's spinal stenosis with radiculopathy was less likely as not caused by or the result of his time in service or related to any incident of service. The rationale was that there was no mention of treatment for lumbar spinal stenosis in April 1999 treatment records and that the first evidence of spinal stenosis was in March 2007, over 50 years after service. The examiner acknowledged the June 2011 statement from Dr. WMP that the Veteran's spinal stenosis with radiculopathy "could have been worsened" by the service in the Korean War. The VA examiner stated that the literature, however, did not support this. The VA examiner stated that there was no evidence that the Veteran had a trauma to his back in service that could have been identified as the cause of the Veteran's spinal stenosis. He concluded that it was more likely that his spinal stenosis with radiculopathy was related to degenerative arthritis and progressive disc degeneration due to aging. In this case, the evidence of record demonstrates a current diagnosis of spinal stenosis with radiculopathy. However, the preponderance of the evidence weighs against the claim and does not serve to link any current back disability to any event or incident of the period of active duty. The Board finds the May 2013 VA examiner's opinion is based on an examination of the Veteran and review of the entire evidentiary record and is well reasoned insofar as it is addresses the Veteran's own reports about the conditions of combat service. The VA examiner added in support of the opinion that the there was no showing of manifestations until many years after service. As such, the medical opinion provided by the May 2013 VA examiner establishes that a low back disability was not related to service, but rather to aging. This opinion relates the onset of the back disorder to a time many years after the Veteran's service. This length of time is evidence against the claim. See Maxson v. West, 12 Vet. App. 453 (1999). Accordingly, on this record, service connection for a back disorder must be denied. While the Veteran is competent to testify as to factual matters of which he had first-hand knowledge, e.g., experiencing pain, he is not competent to offer a medical conclusion. Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Although Dr. WMP provided a statement that the Veteran's lumbar stenosis with lumbar radiculopathy "could have been worsened" by the Veteran's service, the statement did not state the reasons for this conclusion. As a result, Dr. WMP's opinion is of very low probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (neither a VA examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions; most of the probative value of a medical opinion comes from its reasoning). Hence, the Board finds that the preponderance of the evidence is against the claim of service connection. As the preponderance of the evidence is against the claims, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for diabetes mellitus, type II is denied. Service connection for lumbar spinal stenosis with radiculopathy is denied. REMAND The Veteran also is seeking service connection for a respiratory disorder. There is some evidence that the Veteran has been diagnosed with COPD, since March 2007; however, the May 2013 VA examiner noted that COPD might have been a misdiagnosis. The Veteran underwent a VA examination in May 2013. The examiner noted the 2007 diagnosis of COPD and diagnosed restrictive lung disease. The Veteran denied having a history of smoking. He reported having problems with his left lung due to an abscess and pneumonia and having labored breathing when walking. He denied being on oxygen, being intubated or using steroids or "puffers." The Veteran reported that he did not have problems with his breathing until the last 10 years. The May 2013 VA examiner noted that the results of an April 2013 pulmonary function test were consistent with restrictive airway disease rather than an obstructive airway disorder such as COPD. The examiner stated the Veteran's 1998 lobectomy might have caused decreased lung volumes. The Veteran submitted an NIH article about the causes and prevention of COPD. The article indicated that COPD developed over time due to exposure to factors that irritated the lungs such as smoking and other environmental exposure. It was also noted that an April 1999 private examination report showed the Veteran's chest was clear to auscultation. The record noted a history of lung surgery for a collapsed lung in December 1998. A February 2000 prescription noted a history of a lung abscess and pneumonia. In a June 2011 letter, Dr. WMP indicated that the Veteran had been under his care for several years and listed COPD as a diagnosis, adding that he had never smoked. Accordingly, the Board finds that another opinion is needed to address the likely etiology of all identified lung pathology including that due to the earlier left lung abscess or pneumonia and the recently suggested restrictive lung disease. Accordingly, this remaining matter is REMANDED to the RO for the following action: 1. The RO should take all indicated action to send the claims file to the VA examiner who saw the Veteran in May 2013 or suitable substitute in order to obtain an addendum opinion. The examiner should review the claims file and answer the following question. A complete rationale should be provided for any opinion expressed. If the examiner determines that the opinion cannot be provided without a physical examination, one should be scheduled. After reviewing the entire record, the VA examiner should opine as to whether it is at least as likely as not that the Veteran has a current lung disability manifested by COPD, the residuals of a left lung abscess or cystic lesion, pneumonia or a restrictive lung defect that was caused by his exposure to dust or another harmful inhaled substance consistent with his combat service in the Korean conflict. 3. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, then the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs