Citation Nr: 1323671 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 04-08 503 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a pulmonary disability, including of residuals of pneumonia, chronic obstructive pulmonary disease (COPD), restrictive lung disease, and pulmonary fibrosis, and as secondary to service-connected gastroesophageal reflux disease (GERD). REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran, who is the appellant, served on active duty from December 1963 to December 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2003 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2012, the Board remanded the claim for further development, which has been completed. FINDING OF FACT A pulmonary disability, including residuals of pneumonia, COPD, restrictive lung disease, and pulmonary fibrosis, is not related to service, and the current pulmonary disability is not proximately due to or made worse by service-connected GERD. CONCLUSION OF LAW The criteria for service connection for a pulmonary disability, including residuals of pneumonia, COPD, restrictive lung disease, and pulmonary fibrosis, are not met; and the criteria for service connection for a pulmonary disability caused by or aggravated by a service-connected disability have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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 v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre-adjudication VCAA notice by letter in July 2003. The Veteran was not provided notice of the disability rating and effective date elements of a service-connection claim, nor was he apprised of the evidence necessary to establish service connection on a secondary basis, prior to the initial adjudication of the appeal. However, these notice errors were cured by letters dated August 2006 and February 2012. The RO subsequently readjudicated the claim, most recently in a May 2013 supplemental statement of the case. See Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006) (holding that VA may cure a timing defect through issuance of compliant VCAA notice followed by readjudication of the claim). In any case, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency and clarifying that the burden of showing harmful or prejudicial error normally falls on the party attacking the agency's determination). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records, and VA and private medical records. The Veteran has not identified any outstanding VA or non-VA treatment records which are relevant to the claim. The Veteran has been was granted disability benefits from the Social Security Administration (SSA); however, the basis for SSA's determination is unclear. The Veteran has not argued, and the record does not reflect, that the SSA records are relevant. Thus, VA is not obligated to obtain them. See Golz v. Shinseki, 590 F.3d 1317, 1322 (Fed. Cir. 2010) (there is no duty to assist when there is no indication that the records are potentially relevant). The Veteran has received several VA examinations during the course of the appeal, most recently in May 2013. That examination report is based on a thorough review of the Veteran's history and the evidence of record, as well as a physical examination of the Veteran. The report described the disability in sufficient detail so that the Board's review is a fully informed one. Thus, it is adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disabilities in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The report also complies with the Board's November 2012 remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998)( the Board errs as a matter of law when it fails to assure substantial compliance with remand orders). As there is no indication of the existence of additional evidence to substantiate the claim, no further assistance to the Veteran in developing the facts is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Law and Regulations Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Secondary service connection will be granted when a disability is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310. Secondary service connection may be established for a disorder which is aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent lay evidence is 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). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The showing of a chronic disease in service requires 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 after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). In this case, chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply, because none of the pulmonary disorders with which the Veteran has been diagnosed is a chronic disease enumerated in the regulation listing named chronic diseases in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, No. 2011-7184, 2013 WL 628429 (Fed.Cir. Feb. 21, 2013)(the continuity of symptomatology avenue to service connection under regulation creating presumption of service connection for chronic diseases manifesting during service and then again at any later date is available only for chronic diseases enumerated in the only regulation listing named chronic diseases). 38 C.F.R. §§ 3.303(b), 3.309(a). Facts The service treatment records show that in August and September 1965 the Veteran was treated for pneumonia in the right lower lobe. Thereafter there was no evidence of residuals of pneumonia. Although the Veteran did complain of chest pain and a cough in October 1966 and on separation examination in November 1966, a chest X-ray showed no abnormality and a pulmonary defect or diagnosis was not noted on separation examination. After service, in August 1985, a chest X-ray showed inflammatory disease and densities in the lower lung fields. The finding was poor inspiratory effort otherwise nonspecific. The Veteran had a history of smoking. In March 199, a CT scan showed pulmonary fibrosis in the left lung. History included severe pneumonitis in service. In November 1992, a bronchoscopy showed left lower lobe infiltrate of unknown etiology. No mass was seen on CT scan. It was thought that the infiltrate was due to resolving pneumonia, poor inspiration, and obesity. The Veteran has had several chest X-rays and CT scans since then, which have all shown pulmonary fibrosis in the left perihilar region of the left lung. In June 1993, the Veteran filed a claim for service connection for residuals of pneumonia. The Veteran asserted that he had had severe bilateral pneumonia during service, and that consequently he had lung scar tissue. In August 1993 on VA examination, history included a lung infection in service and a left perihilar infiltrate in November 1992. The Veteran's current symptoms included a chronic productive cough and shortness of breath with moderate exertion. X-rays showed pulmonary fibrosis. Pulmonary function testing showed a low vital capacity to expiratory reserve volume consistent with obesity. In February 1997 in a sleep study, the Veteran had sleep apnea resulting in oxygen desaturation at night, which was treated with supplemental oxygen. In March 1999, the Veteran's treating VA physician, Dr. T.C., had the opportunity to review the Veteran's service treatment records, including the episode of pneumonia in the right lung. The VA physician noted by history that the Veteran was hospitalized for 4 days and was then placed on bed rest in service. After service, there was a history of smoking about one pack of cigarettes a day for 30 years. Dr. C. stated that it was certainly reasonable that history of pneumonia could have led to pulmonary fibrosis. In April 1999, chronic obstructive pulmonary disorder was added to the Veteran's problem list. In May 1999, the Veteran went to a VA emergency department with chest pain. The emergency room physician stated that the Veteran had chronic respiratory disease, apparently chiefly restrictive associated with previous pneumonia and scarring. In June 1999, VA records show that the Veteran was seen in a gastrointestinal consultation for GERD, exacerbating pulmonary fibrosis. On VA examination in January 2000, the VA examiner reviewed all of the evidence of record, including Dr. C.'s statement and the history of pneumonia during service. It was noted that the Veteran started smoking at about age 11 and he quit in around 1980. His weight was 390 pounds. He was chronically short of breath and required constant supplemental oxygen. Pulmonary function tests showed mild restriction. A chest X-ray showed findings which were not consistent of scarring from bacterial pneumonia. Rather, the fibrosis was diffuse interstitial idiopathic pulmonary fibrosis, which was most likely not related to the history of pneumonia. An X-ray study was consistent with COPD. In May 2001, there was a history of pulmonary fibrosis secondary to pneumonia. In February 2003 restrictive lung disease was noted. On VA examination in August 2003, the VA examiner took a detailed history from the Veteran in an effort to determine whether he had any post-service lung disability. The diagnoses were COPD and pulmonary fibrosis. In February 2012 on VA examination, the Veteran's pulmonary disorders were COPD, restrictive lung disease secondary to obesity, and obstructive sleep apnea. A X-ray showed diffuse nodular interstitial changes in the mid to lower lung fields with a bulla in the left upper lobe. A chest CT scan showed interstitial edema. The diagnoses were community acquired pneumonia, pulmonary fibrosis, sleep apnea, and COPD. The VA examiner found no current residuals of the episode of pneumonia during service, since restrictive lung disease was secondary to his obesity. In February 2012, the Veteran associated his lung problems, pulmonary fibrosis, to pneumococcal pneumonia he had in service. Private medical records from March 2012 to August 2012 show treatment for COPD and pulmonary fibrosis, and the cause of the pulmonary fibrosis was not known. In June 2012, VA also found that the etiology for pulmonary fibrosis was unknown. On VA examination in May 2013, VA examiner found that COPD was unrelated to the pneumonia in service, and was likely related to a 30 year history of smoking, as tobacco use was the most common cause of COPD. The VA examiner further found that it was less likely than not that pulmonary fibrosis was related to the in-service episode of pneumonia, as the Veteran had normal chest X-rays after the resolution of the in-service pneumonia. Additionally, the pneumonia was in the right lower lobe, whereas pulmonary fibrosis was identified in the left perihilar area, which was not consistent with pneumonia as the cause of the fibrosis. The VA examiner explained that the Veteran had recently undergone extensive evaluation by a private pulmonologist, who found no indication that pulmonary fibrosis was related to the Veteran's service. The VA examiner also stated that it was less likely than not that any current pulmonary pathology was proximately due to or caused by the service-connected GERD, because GERD had been stable for years but the pulmonary pathology had progressed. Analysis In assessing medical evidence, whether a physician provides a basis for a medical opinion goes to the weight or credibility of the evidence. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-89 (2000). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); Swann v. Brown, 5 Vet. App. 229, 232 (1993). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The opinions presented by the Veteran in support of his claim include the March 1999 statement from Dr. T.C. Dr. C. reviewed the Veteran's service treatment records and found that it was certainly reasonable that pulmonary fibrosis was related to the in-service episode of pneumonia. The finding that it was certainly reasonable that pneumonia could have led to pulmonary fibrosis leaves open the possibility that the pneumonia may not have played any role at all. Dr. C. also failed to discuss how right lower lobe pneumonia during service could have led to pulmonary fibrosis in the left lung. Because Dr. C.'s opinion does not account for the significant facts of the case, the opinion his little probative value. As for the other clinical notes that associate pulmonary fibrosis to pneumonia in service, the clinical notes are supported by any rationale and have little probative value. In January 2000 and May 2013 on VA examinations, the VA examiners found that the Veteran's pulmonary disorder was not the result of in-service pneumonia. The January 2000 examiner stated that current chest X-ray were not consistent with scarring from bacterial pneumonia and characterized the Veteran's pulmonary fibrosis as idiopathic. The May 2013 VA examiner noted that the in-service chest X-rays after August 1965 were normal with no evidence of scarring and that the Veteran's pulmonary fibrosis was in the perihilar region of the left lung, whereas the pneumonia during service was in the lower lobe of the right lung. The VA examiner stated that pulmonary fibrosis could not be the result of scarring caused by pneumonia. The Board finds that the opinions of the VA examiners persuasive evidence against the claim that outweighs the opinion of the other VA physician and the unsupported VA clinical notes on the question of whether in-service pneumonia resulted in pulmonary fibrosis. Although in May 1999, a VA physician stated that restrictive lung disease was due to pneumonia and scarring, the other medical evidence consistently associates the condition to obesity. The Board places more weight on the evidence that restrictive lung disease was due to obesity as described. There is no competent and credible evidence that COPD is related to service or to a service-connected disability. In May 2013, the VA examiner found that it was less likely than not that such a relationship exists, because tobacco is the most common cause of COPD, and the Veteran had a 30 year history of smoking. There is nothing in the record that contradicts the finding. In May 1998, a clinical note refers to the possibility of a relationship between the service-connected GERD and the pulmonary disability. In May 2013, the VA examiner found that it was not at least as likely as not that any pulmonary disability was related to GERD as GERD had been stable for many years but the severity of the pulmonary disability had progressed to the point where supplemental oxygen was needed. There is no competent and credible evidence which contradicts this finding. The Veteran asserts that his pulmonary disability was caused by or related to pneumonia he had in service. The Veteran as lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (A witness must have personal knowledge in order to be competent to testify to a matter; personal knowledge is that which comes to the witness through the use of the senses.) The Veteran's opinion, as a lay person, is limited to inferences that are rationally based on his perception and does not require specialized education, training, or experience. Here, the question of whether pneumonia in service caused or is related to the current pulmonary disability is not a simple medical condition that can be determined by the Veteran as a lay person based on inferences gained by his own personal knowledge, because the medical causal relationship here falls outside the realm of common knowledge of a lay person, that is, the question is not capable of lay observation without specialized education, training, or experience. And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the question of a causal relationship or nexus between pneumonia in service and the current pulmonary disability. For this reason, the Board rejects the Appellant's lay opinion as competent evidence to substantiate the claim and has not evidentiary weight. In summary, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of prove does not apply. 38 U.S.C.A. § 5107(b). and has no evidentiary weight. ORDER Service connection for a pulmonary disability, including residuals of pneumonia, COPD, restrictive lung disease, and pulmonary fibrosis, and as secondary to service-connected GERD is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs