Citation Nr: 1322951 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 08-14 307 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a lung disability, to include histoplasmosis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The appellant served on active duty from April 1980 to April 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Regional Office (RO) in Wichita, Kansas, which denied service connection for a lung disability and denied reopening of a claim for service connection for a cervical spine disability. This case was previously before the Board in June 2010, when the cervical spine disability issue was reopened (with the Board finding new and material evidence had been submitted) and the issues on appeal were remanded for additional development. In October 2011, after the issuance of the most recent supplemental statement of the case (SSOC) in September 2011, the Veteran submitted additional argument and evidence in support of this appeal. It is not immediately clear whether this material was received before or after the case was returned to the Board for appellate review during that month; it appears most likely that the material was received after the case was returned to the Board for appellate review. The Veteran submitted a signed statement in October 2011 expressly stating that "I waive my right to have my case remanded (send back) to the Agency of Original Jurisdiction (my Regional Office) and I ask that BVA consider the new evidence and proceed with the adjudication of my appeal." Consequently, the Board may proceed to adjudicate the Veteran's claim. See 38 C.F.R. § 20.1304 (c). The issue of entitlement to service connection for a cervical spine disability 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 The Veteran is not shown to have a chronic lung disability (or to have had such disability at any time during the pendency of this claim). CONCLUSION OF LAW Service connection for a chronic lung disability is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 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, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. A notification letter sent in January 2007 explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. The letter also informed the Veteran of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record and has not alleged that notice in this case was less than adequate. Copies of the Veteran's available service treatment records (STRs) are associated with his claims file. The Veteran's pertinent available postservice treatment records have been secured. He was afforded a VA examination addressing the instant matter in July 2010. As discussed below, the Board finds that the July 2010 VA examination report is adequate for the purposes of this decision. The Board finds there has been compliance with the instructions of the June 2010 remand regarding the matter at hand (directing that the Veteran be afforded the VA examination that was accomplished in July 2010). The Veteran has submitted evidence and not identified any additional pertinent evidence that remains outstanding. Accordingly, the Board finds that VA's duty to assist is met and will address the merits of the claim. Analysis This appeal involves a claim of entitlement to service connection for a lung disability; the Veteran contends that service connection is warranted for histoplasmosis or for any other current chronic lung disability that may be currently diagnosed and related to his military service, to include his exposure to various chemicals, bat feces, and bird feces during his 20 years of service. Initially, the Board notes all of the evidence in the Veteran's claims file and in Virtual VA (VA's electronic database storage), with an emphasis on the evidence relevant to this appeal, has been reviewed. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially 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). To establish a claim of service connection, there must be evidence of a present disability; evidence of an in-service incurrence or aggravation of a disease or injury; and evidence of 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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). In the absence of proof of a current disability, there is no valid claim of service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 381 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (e.g., a broken leg), (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 (Fed. Cir. 2007). However, competent medical evidence is necessary when the determinative question is one requiring medical knowledge. Id. Competent medical evidence means 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 mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include 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 means 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). The threshold question that must be addressed here, as in any claim seeking service connection, is whether the Veteran actually has (or during the pendency of his claim has had) the disability for which service connection is sought, i.e., a chronic lung disability. The Board finds that service connection is not warranted for a lung disability in this case because, after significant development of the medical evidence on this question, the probative medical evidence indicates that the Veteran does not have a current chronic lung disability and has not had a chronic lung disability during the pendency of this claim. Service treatment records include March 1997 and March 1998 X-ray studies showing a small calcified granuloma in the left upper lung field. A December 1999 VA examination report indicates that small stable calcifications were present in the hilar regions, apparently of both lungs. The Veteran was treated in 2002 for histoplasmosis, with imaging showing an enlarged lymph node and a calcified granuloma in the right upper lobe. A biopsy was taken, showing caseating granuloma. The Veteran was treated with anti-fungal medication at that time. The Veteran underwent additional imaging during follow-up. A December 2002 private medical record shows that a CT scan showed "another probable granuloma, which is calcified and appears to be benign.... this lesion can be safely followed." A September 2006 chest CT scan showed a stable, enlarged right hilar lymph node and a right upper lobe nodule that was significantly smaller than the comparison study dated September 2004. A November 2006 chest X-ray was interpreted to show a stable chest without evidence of acute cardiopulmonary disease. The Board remanded this issue for the purpose of obtaining a medical opinion that, in part, would specifically clarify whether diagnostic imaging and clinical findings show an actual chronic disability for which service connection may be considered. The resulting July 2010 VA examination report is informed by review of the claims-file and contains a discussion of the Veteran's pertinent pulmonary health history and his contentions. The July 2010 VA examination report's discussion of pulmonary history shows that the Veteran had "no history of" all listed potentially pertinent symptoms. Chest X-ray study conducted in July 2010 for the purpose of ruling out lung disease, and the medical impression was: "There is no acute cardiopulmonary pathology." The X-ray findings included a finding of "no active infiltrates." Additional examination including pulmonary function testing (PFT) was completed. Following completion of all tests and studies, the diagnosis was: "History of right upper lobe nodule s/p [status post] removal by wedge biopsy; Normal PFT without current evidence of respiratory ailment." The Board reads the July 2010 VA examination report as showing that no diagnosed disability or disease pathology is shown since the time of the May 2002 wedge biopsy removal of a suspicious nodule. The July 2010 VA examination report also further clarifies that although the May 2002 biopsy pathological findings were initially "consistent with histoplasmosis," there were ultimately "no confirmatory findings." The July 2010 VA examination report explains that the possibility of histoplasmosis was investigated at that time "but without confirmation of histoplasmosis by other laboratory testing." The examiner further explained that histoplasmosis typically manifests in radiographic evidence of "focal infiltrates and mediastinal or hilar lymphadenopathy," while also noting that the July 2010 diagnostic imaging was negative for these features; the July 2010 VA examination report indicates that a diagnosis of histoplasmosis is not part of the Veteran's medical history shown by the reviewed medical documentation or current testing. The July 2010 VA examiner also explained that "[t]he presence of granuloma does not indicate any specific disease process but is a natural response to foreign substance." The July 2010 VA examination report thus indicates that there is no diagnosis of lung disability present in the Veteran, nor does the Veteran's history involve any shown chronic lung disability since the time of the May 2002 biopsy; this indicates that no lung disability is shown to have been present during the pendency of this claim which was filed in June 2006. The September 2006 private diagnostic imaging report presented clinical findings pertinent to follow-up evaluation from the Veteran's past treatment, but showed "[n]o new abnormalities" and noted "[n]o infiltrate." The clinical findings in the September 2006 report do not constitute a disability diagnosis, and the July 2010 VA examination report shows that no diagnosis arises from the shown clinical findings. The November 2006 diagnostic imaging report also presents no diagnosis and indicates a "[s]table chest without evidence of acute cardiopulmonary disease." More recent medical evidence of record continues to show clinical findings with no diagnosis of a lung disability. A private August 2011 diagnostic imaging report shows that the previously "mildly prominent right hilar lymph node" had become "less prominent" with "really no discernible or discrete mass lesion noted." The report noted that there was no pertinent lymphadenopathy and there was no significant infiltrate-like density." The medical impression was that there was "[n]o CT evidence for acute abnormality about the chest." Thus, this August 2011 diagnostic imaging report presents no evidence supporting the Veteran's claim. In sum, after careful consideration and development to address the question, the Board finds that there has been no diagnosed chronic lung disability during the pendency of this service connection claim on appeal. The medical evidence of record shows clinical findings without indication of a lung disability or diagnosis, and the July 2010 VA examination report indicates that no such diagnosis is warranted beyond the history of a removed lung nodule with wedge biopsy in 2002. There is no medical indication of any disabling or diagnosed residuals of the 2002 wedge biopsy, and the July 2010 VA examination report indicates that there are no such disabling or diagnosed residuals. There is no medical report or opinion of record indicating a diagnosed lung disability during the pendency of this appeal The Veteran is not competent to establish a diagnosis of a specific lung disability, as such a diagnosis requires specialized medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court). In Jandreau, the Federal Circuit specifically determined that a lay person is not considered competent to testify when the issue was medically complex, as is the question of a pulmonary/lung disability diagnosis in this case. The Veteran has not provided any competent evidence supporting his belief that he has a current chronic lung disability (or has had such a lung disability during the pendency of this appeal); he has submitted medical records with clinical findings and notations without diagnosis of disease or disability. He has not submitted a supporting medical opinion on this point, nor does he cite to supporting factual data or medical literature. He is a layperson with no medical training. Consequently, his own opinion is not competent evidence in the matter. He otherwise offers no explanation of rationale for the assertion that he has a chronic lung disability which may otherwise identify other avenues of development or consideration in this appeal. The Board must find that the July 2010 VA examination report, with a competent medical conclusion that the Veteran has no chronic lung disability beyond that addressed with the 2002 biopsy, is the most probative evidence on the question of whether a medically recognized lung disability has existed during the pendency of this claim. The evidence does not show a confirmed diagnosis of any form of lung disability during the pendency of this appeal. The Board has further considered the fact that the Veteran's claim may be considered for service connection as an undiagnosed illness. Service connection may be established for a chronic disability manifested by certain signs or symptoms which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2016, and which, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1); 71 FR No. 242, pp. 75669-75671 (December 18, 2006). Consideration of a Veteran's claim under this regulation does not preclude consideration of entitlement to service connection on a direct basis. The Board observes that the Veteran's service treatment records include reference to possible Gulf War Syndrome, including in a June 1998 report. However, regardless of the Veteran's qualifying service in Southwest Asia during the Persian Gulf War, there is no evidence and no contention in this case that the Veteran has experienced certain signs or symptoms that cannot medically be attributed to any known clinical diagnosis. As discussed above, the Veteran not only has no diagnosis of a chronic lung disability during the pendency of this claim, but he has not had symptomatic manifestations of lung disability during the pendency of this claim. The July 2010 VA examination report shows that the objective functional test results were "without current evidence of respiratory ailment," and no other evidence or contentions indicate signs and symptoms of chronic lung disability during the pendency of this claim. In the absence of any competent evidence that the Veteran has had a chronic lung disability during the pendency of this claim, he has not presented a valid claim of service connection for such disability. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the appeal in the matter must be denied. ORDER Service connection for a lung disability is not warranted. To this extent, the appeal is denied. REMAND The Board's June 2010 remand of the cervical spine issue discussed the need for additional development. Unfortunately, the Board finds that the necessary development has not been adequately accomplished and final appellate review of the issue cannot properly proceed at this time. With regard to the issue of entitlement to service connection for a cervical spine disability, the June 2010 Board remand discussed that the pertinent evidence of record included a September 1996 X-ray study report showing that the diagnostic imaging was interpreted to show some disc degeneration / degenerative disc disease at the lower levels. The remand directed that a VA examination be arranged to address the question of whether any of the Veteran's current diagnoses of the cervical spine are etiologically related to the Veteran's pre-service whiplash or the in-service injuries noted in 1992 and 1995. The Board preliminarily notes that the resulting July 2010 VA examination report finds that the Veteran's current cervical spine disabilities are unlikely related to any whiplash injury prior to the Veteran's active duty military service (finding that the "pre military injuries ... appear to have been of acute and transitory nature based on his acceptance into the military ..."). However, the July 2010 VA examination report also finds that the Veteran's current cervical spine disabilities are unlikely related to military service, citing that there were no pertinent subjective complaints at the time of the Veteran's April 2000 discharge (aside from separately service-connected headaches) and no objective evidence of cervical spine abnormality at the time of the May 2000 VA examination. The Board is unable to reconcile significantly conflicting indications of record. The service connection claim on appeal includes the currently diagnosed degenerative disc disease of the cervical spine and a September 1996 X-ray study shows objective evidence of some disc degeneration during the Veteran's military service; the September 1996 medical impression was "Minimal lower cervical degenerative disk disease." This significant evidence of in-service disc degeneration / degenerative disc disease observed on diagnostic imaging must be seen as at least suggestive of a possible in-service onset of the current degenerative disc disease; it also may suggest the possibility that some of the broader set of cervical spine diagnoses are etiologically linked to military service. Unless the degenerative changes of the discs of the cervical spine healed after September 1996 before subsequently resuming a degenerative course after service, the Board must consider that the September 1996 report is in conflict with subsequent evidence suggesting an absence of degenerative changes. Unfortunately, the July 2010 VA examination report does not acknowledge or discuss the September 1996 report or otherwise provide the Board with any basis for reconciling the conflicting evidence. The Board finds that, under these circumstances, the July 2010 VA examination report cannot be considered adequate to address this issue when it does not acknowledge or address this highly significant in-service evidence that appears to support the Veteran's claim. Additionally, the Board notes that the Veteran filed a claim for service connection for a neck disability in December 1999, before he separated from service, and that he pursued this claim in adjudication until an October 2000 RO rating decision denied his claim. To the extent that this suggests that the Veteran was asserting that he had a disability of the neck at the time of his separation, these facts conflict with the July 2010 VA examiner's reliance upon a factual predicate that cites an absence of subjective complaints of cervical spine disability from the Veteran at the time of his separation from service. As the July 2010 VA examination report does not acknowledge or address this significant information that conflicts with the factual predicate of the examiner's analytical rationale, the Board cannot rely upon the July 2010 VA examination report. The Veteran has a wide variety of cervical spine diagnoses contained in his private treatment records. The Board's June 2010 remand discussed that the Board could not determine which, if any, of the current disabilities of the cervical spine are related to service and a medical opinion was necessary. As the development accomplished since the June 2010 remand features a VA examination report which is inadequate to support informed appellate review, the Board remains unable to make the necessary determinations to resolve this case without more adequate medical evidence. The Board remands for clarification of the July 2010 VA examination report. Accordingly, the case is REMANDED for the following action: 1. The claims-file should be forwarded to the medical professional responsible for the July 2010 VA examination report's medical analysis concerning the etiology of the Veteran's cervical spine disabilities, if available, so that the expert may author an addendum to clarify and amend the information previously presented in the report. If this examiner is unavailable, the claims-file should be forwarded to another appropriate medical professional. The claims folder must be made available to the examiner for review of pertinent documents therein in connection with the examination. The examination report must reflect that such a review was conducted. All indicated studies should be completed. The examiner should respond to the following: a) Please specifically identify each chronic disability of the cervical spine currently diagnosed for this Veteran. b) For each chronic disability of cervical spine currently diagnosed, and for each of the pertinent diagnoses previously established during the course of this appeal (including cervical degenerative disc disease, cervical spondylosis, symptoms of facet joint syndrome and cervicalgia, with cervical foraminal stenosis with bilateral C4 and C6 radiculopathy), please state whether it is at least as likely as not (a 50 percent or greater probability) that the disability had onset during service or was otherwise caused during the Veteran's military service. c) For any chronic disability of the cervical spine that is considered to have pre-existed the Veteran's military service, please state whether it is at least as likely as not (a 50 percent or greater probability) that the disability was aggravated (permanently increased in severity) during the Veteran's military service. d) With regard to the discussion of etiology in the responses to the above, please specifically discuss and explain the significance, if any, of the September 1996 X-ray report indicating disc degeneration / degenerative disc disease of the cervical spine during service. Please discuss how the medical analysis of etiology reconciles the fact that disc degeneration was shown in 1997 but subsequent studies included normal findings. e) With regard to the discussion of etiology in the responses to the above, please specifically discuss and explain the significance, if any, of the fact that the Veteran asserted that he was suffering from a chronic neck disability in 1999 in a claim for VA disability benefits that he pursued into the year 2000. The examiner is asked to please discuss any relevant available in-service and post-service medical records. A rationale should be provided for all opinions. 2. To avoid further remand, the RO/AMC should review the medical opinion obtained and ensure that the requested findings and opinions have been reported. 3. After completion of the above, and any additional development which the RO/AMC may deem necessary, the RO/AMC should then review the expanded record and readjudicate the issue remaining on appeal. The RO/AMC should issue an appropriate supplemental statement of the case, and give the appellant and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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). 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). ______________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs