Citation Nr: 1329248	
Decision Date: 09/12/13    Archive Date: 09/20/13

DOCKET NO.  08-29 879A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New 
Orleans, Louisiana


THE ISSUES

1.  Entitlement to service connection for low back 
disability.

2.  Entitlement to service connection for lung disability 
(claimed as lung scarring).  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

R.N. Poulson, Counsel
INTRODUCTION

The Veteran served on active duty from October 1984 to 
October 1987.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a March 2005 decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
New Orleans, Louisiana, which, in pertinent part, denied 
service connection for low back disability, residuals of 
left ankle sprain, and lung disability.

In November 2010, the Veteran testified at a video 
conference hearing before the undersigned Veterans Law 
Judge.  During the hearing, the Veteran submitted additional 
evidence along with a waiver of initial RO consideration.  A 
transcript of the hearing is associated with the claims 
file.

In December 2010, the Board remanded the case for additional 
development.  
 
In a September 2011 rating decision, the Appeals Management 
Center (AMC) granted service connection for residuals of 
left ankle sprain and assigned a 10 percent evaluation, 
effective December 23, 2004.  Thus, this issue is not 
currently in appellate status.

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).

The issue of entitlement to service connection for low back 
disability is addressed in the REMAND portion of the 
decision below and is REMANDED to the RO via the AMC in 
Washington, DC.


FINDING OF FACT

The competent and probative evidence of record establishes 
that the Veteran does not have a lung disability that had 
its clinical onset in service or is otherwise related to 
active duty.
CONCLUSION OF LAW

Lung disability was not incurred in or aggravated by active 
service.  38 U.S.C.A. 
§§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 
3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA)

Under the Veterans Claims Assistance Act of 2000 (VCAA), 
codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 
5107 and 5126; see also 38 C.F.R. 
§§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify 
the claimant of any information and evidence needed to 
substantiate and complete a claim, and of what part of that 
evidence is to be provided by the claimant and what part VA 
will attempt to obtain for the claimant.  38 U.S.C.A. § 
5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 
Vet. App. 183, 187 (2002).  

The United States Court of Appeals for Veteran Claims 
(Court)'s decision in Pelegrini v. Principi, 17 Vet. App. 
412 (2004), held, in part, that a VCAA notice, as required 
by 38 U.S.C.A. § 5103(a), must be provided to a claimant 
before the initial unfavorable agency of original 
jurisdiction (AOJ) decision on a claim for VA benefits.  
This decision has since been replaced by Pelegrini v. 
Principi, 18 Vet. App. 112 (2004), in which the Court 
continued to recognize that typically a VCAA notice, as 
required by 38 U.S.C.A. § 5103(a), must be provided to a 
claimant before the initial unfavorable agency of original 
jurisdiction (AOJ) decision on a claim for VA benefits.  
	
In January 2005, a VCAA letter was issued to the Veteran 
with regard to his claim of service connection.  This letter 
apprised the Veteran of what the evidence must show to 
establish entitlement to the benefit, what evidence and/or 
information was already in the RO's possession, what 
additional evidence and/or information was needed from the 
Veteran, what evidence VA was responsible for getting, and 
what information VA would assist in obtaining on the 
Veteran's behalf.  

As will be discussed below, the Board has determined that 
service connection is not warranted for the claimed lung 
disability.  Thus, any question as to the appropriate 
disability rating and effective date is moot, and there can 
be no failure to notify prejudice to the Veteran.  See 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

The Board also finds that VA has complied with its duty to 
assist the Veteran in the development of the claim decided 
herein, to include substantial compliance with the December 
2010 Remand.  See D'Aries v. Peake, 22 Vet. App. 97, 105 
(2008).  The evidence of record includes service treatment 
records (STRs) and VA treatment records.  The Veteran has 
not indicated, and the record does not contain evidence, 
that he is in receipt of disability benefits from the Social 
Security Administration (SSA).  See 38 C.F.R. § 3.159 
(c)(2).  

The Veteran contends that some of his STRs are missing.  As 
proof, he has submitted a document dated in December 1987.  
The letter contains the following: "This paperwork has just 
found its way to us at the 2/11 BAS.  The radiology consult 
shows you have an abnormality in the upper right lobe of 
your lungs."  The Veteran contends that this letter was 
mailed to him subsequent to his September 1987 separation 
examination.  The Board notes that the name of the person to 
whom the letter is addressed is illegible.  However, even 
assuming the validity of this document, the mere fact that 
there are missing STRs has no bearing whatsoever on the 
requirement that the Veteran establish he has the condition 
alleged.  Missing STRs, even if available, would not be 
probative of this threshold issue.  Thus, the importance of 
such documents is greatly diminished where, as here, the 
claim must be denied for no current disability.

In February 2011, the Veteran was afforded a VA respiratory 
examination.  When VA undertakes to provide a VA examination 
or obtain a VA opinion, it must ensure that the examination 
or opinion is adequate.  See Barr v. Nicholson, 21 Vet. App. 
303, 312 (2007).  The Board finds the February 2011 
examination to be adequate.  The examiner considered the 
pertinent evidence of record, to include statements 
regarding the in-service motor vehicle accident that 
allegedly led to the development of the Veteran's 
disabilities, fully examined the Veteran, thoroughly 
reviewed of the claims file, and answered the questions 
posed by the AOJ.  Accordingly, the Board finds that VA's 
duty to assist with respect to obtaining a VA examination or 
opinion with respect to the claim on appeal has been met.  
See 38 C.F.R. § 3.159(c)(4).   

The Veteran was provided an opportunity to set forth his 
contentions during the hearing before the undersigned VLJ in 
November 2010.  In Bryant v. Shinseki, 23 Vet. App. 488, 
(2010) the Court held that 38 C.F.R. § 3.103(c)(2) requires 
that the VLJ who chairs a hearing fulfill two duties to 
comply with the above the regulation.  These duties consist 
of (1) the duty to fully explain the issues and (2) the duty 
to suggest the submission of evidence that may have been 
overlooked.  During the November 2010 hearing, the VLJ 
identified the issues on appeal.  Testimony was solicited 
regarding the Veteran's lungs.  The hearing discussion did 
not reveal any evidence that might be available that had not 
been submitted.  The VLJ also explained the elements 
necessary to substantiate the Veteran's claim for benefits.  
Moreover, neither the Veteran nor his representative has 
asserted that VA failed to comply with 38 C.F.R. § 
3.103(c)(2) or identified any prejudice in the conduct of 
the Board hearing.  As such, the Board finds that, 
consistent with Bryant, the VLJ complied with the duties set 
forth in 38 C.F.R. § 3.103(c)(2) and that the Board can 
adjudicate the claim based on the current record. 
 
For all the foregoing reasons, the Board concludes that VA's 
duties to the Veteran have been fulfilled with respect to 
the issue in appellate status.

II.  Service Connection

Service connection may be granted for disability resulting 
from disease or injury incurred or aggravated during active 
military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. 
§ 3.303.  That an injury or disease occurred in service is 
not enough; there must be chronic disability resulting from 
that injury or disease.  If there is no showing of a 
resulting chronic condition during service, then a showing 
of continuity of symptomatology after service is required to 
support a finding of chronicity for any condition listed in 
38 C.F.R. § 3.303(b).  Any condition not encompassed by 
Section 3.303 (b) requires a medical nexus.  Walker v. 
Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Service 
connection may also be granted for any injury or disease 
diagnosed after service, when all the evidence, including 
that pertinent to service, establishes that the disease or 
injury was incurred in service.  38 C.F.R. § 3.303(d). 

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); 
Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

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 medical evidence may also include statements 
conveying sound medical principles found in medical 
treatises.  It also includes 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 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).

When all 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 preponderance of the evidence is against 
a claim, in which case, the claim is denied.  38 U.S.C.A. § 
5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran seeks service connection for lung disability.  
Specifically, he contends that he was exposed to a fungal 
infection while stationed in Hawaii or Thailand during 
service, and that the infection resulted in calcified 
nodules.  See Hearing Transcript at 19.  The Veteran further 
maintains that he has suffered from respiratory symptoms, 
such as chest pain, coughing and shortness of breath, ever 
since service.

The August 1984 enlistment examination contains a normal 
clinical evaluation of the lungs and chest; a chest X-ray 
was normal.  In June 1986, the Veteran complained of 
shortness of breath during physical training.  He denied 
wheezing.  His chest was clear upon examination.  The 
clinician diagnosed shortness of breath during physical 
training "probably secondary to increased weight."  In 
September 1986, the Veteran had a positive PPD test; a chest 
X-ray was normal.  In April 1987, he complained of chest 
pain.  His chest was clear upon examination.  The diagnosis 
was "probable chest wall pain."  The September 1987 
separation examination contains a normal clinical evaluation 
of the lungs and chest.  The Veteran denied any shortness of 
breath, chest pain, or chronic cough on the accompanying 
medical history report.

Post-service VA treatment records show that the Veteran has 
a benign calcification in the right upper lobe.  A July 2007 
chest X-ray revealed that the nodule was unchanged from 
December 2004.  

In February and March 2010, the Veteran was treated for a 
chest cold that he reportedly had had for one year.  He 
reported a productive cough with brown colored sputum.  He 
denied any chest pain or shortness of breath.  A chest X-ray 
showed "nothing acute."  The diagnosis was allergic 
rhinitis.

The Veteran submitted to a February 2011 VA respiratory 
examination.  He told the examiner about the December 1987 
letter.  He complained of productive cough, dyspnea on 
moderate exertion, night sweats, and occasional moderate 
hemoptysis.  Upon physical examination, there was no 
evidence of abnormal breath sounds.  Chest expansion and 
diaphragm excursion were slightly limited.  There was no 
chest wall scarring.  PFTs were normal.  Arterial blood 
gases were normal "except for slight increase in HCO3 and 
tCO2 and mild increase in ART-ph."  The examiner reviewed 
the claims file, to include the July 2007 X-ray report.  He 
noted that a September 2010 chest X-ray showed no 
calcification and normal lung fields.  The examiner 
diagnosed a "benign calcification in the right upper lobe of 
the lung in the past, not seen currently."  He also noted 
that the Veteran had no specific symptoms of lung disease 
and no current respiratory problems.  The examiner concluded 
that the calcification was "obviously benign and represents 
no disability to the veteran."

The competent and probative evidence of record establishes 
that this nodule represents a clinical finding that has not 
been linked to any active pathology or disease.  In the 
absence of a confirmed diagnosis of a pulmonary disease or 
disability, service connection is not warranted.  The case 
law is well settled on this point.  In order for a claimant 
to be granted service connection for a claimed disability, 
there must be evidence of a current disability.  See Brammer 
v. Derwinski, 3 Vet. App. 223, 225 (1992) (service 
connection is limited to cases wherein the service incident 
has resulted in a disability, and in the absence of proof of 
a present disability, there can be no valid claim).

The Board notes that the record contains medical literature 
from the Internet submitted by the Veteran in support of his 
claim discussing the causes of granulomas.  The Board notes 
that medical treatise evidence can, in some circumstances, 
constitute competent medical evidence.  See 38 C.F.R. § 
3.159(a)(1) (competent medical evidence may include 
statements contained in authoritative writings such as 
medical and scientific articles and research reports and 
analyses).  But, both Federal regulation and case law 
preclude granting service connection predicated on a result 
of speculation or mere possibility.  38 C.F.R. § 3.102; see 
Utendahl v. Derwinski, 1 Vet. App. 530, 531 (1991) (a 
medical treatise submitted by an appellant that only raises 
the possibility that there may be some relationship between 
sickle cell anemia and the veteran's fatal coronary artery 
disease does not show a direct causal relationship between 
the two disorders such as to entitle the appellant to 
service connection for the cause of the veteran's death).  
The Court has held that a medical article or treatise "can 
provide important support when combined with an opinion of a 
medical professional" if the medical article or treatise 
evidence discusses generic relationships with a degree of 
certainty such that, under the facts of a specific case, 
there is at least "plausible causality" based upon objective 
facts rather than on an unsubstantiated lay medical opinion.  
Sack v. West, 11 Vet. App. 314 (1998); see also Mattern v. 
West, 12 Vet. App. 222, 228 (1999). 

In the present case, the Internet article submitted by the 
Veteran was not accompanied by the opinion of any medical 
expert.  In fact, the Veteran has submitted no medical 
opinion in support of his claim.  Furthermore, based on the 
analysis above, the competent medical evidence of record 
establishes that the Veteran has not had a lung disability 
at any point during the appeal period.  Here, the only 
probative medical opinion of record is against the Veteran's 
claim.  Therefore, while the Board has considered the 
Internet information, it is not sufficient to outweigh the 
VA examiner's opinion.

The Board acknowledges the Veteran's opinion concerning the 
existence of a lung disorder.  However, he has not been 
assessed with any lung disability.  The Board also 
acknowledges that the Veteran is competent to relate his 
observations of respiratory symptomatology, such as 
shortness of breath, chest pain, and coughing.  However, as 
a layperson, lacking in medical training and expertise, the 
Veteran is not competent to assess a lung disorder and his 
views are of no probative value.  And, even if his opinion 
was entitled to be accorded some probative value, it is far 
outweighed by the VA examiner who thoroughly reviewed the 
claims file, examined the Veteran, and found no current lung 
disorder.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. 
Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 
2006).

The preponderance of the evidence is against the service 
connection claim; there is no doubt to be resolved; and 
service connection is not warranted.  See 38 U.S.C.A. § 
5107; Gilbert, 1 Vet. App. at 57-58.  


ORDER

Entitlement to service connection for lung disability is 
denied.


REMAND

The Board finds that further evidentiary development is 
necessary before a decision can be reached on the merits of 
the Veteran's remaining claim. 
 
The Veteran contends that he injured his back during 
service, and that his currently diagnosed low back 
disability resulted from those injuries.  He has stated that 
he has continued to have problems with his back.  See 
Hearing Transcript at 9. 

STRs establish that the Veteran was treated for low back 
pain in November 1986.  In September 1987, one week prior to 
his discharge, a clinician noted that the Veteran's low back 
pain had subsided.  The September 1987 separation 
examination contains a normal clinical evaluation of the 
spine.  The Veteran denied recurrent back pain on the 
accompanying medical history report.

Post-service VA treatment records show that X-rays of the 
thoracolumbar spine in November 1993, May 1994, and April 
1995 were normal.  A January 1996 CT scan of the lumbar 
spine was also normal.

In October 2006, the Veteran was diagnosed with degenerative 
disc disease via X-ray.

The Veteran was treated for back pain in August 2010.  At 
that time, he reported a fall "within the last three 
months."  In September 2010, the Veteran complained of low 
back pain that had present "for many years."  He related 
that the original injury had occurred when he fell onto a 
box in 1991.  He also reported having "a little problem" 
during service.  The impression was degenerative joint 
disease.

A Virtual VA treatment record dated January 2012 shows that 
the Veteran reported a history of low back pain "since the 
1980's."

The Veteran submitted to a VA spine examination in February 
2011.  He stated that he had injured his low back "on 
various occasions in training in rappelling" and that he was 
evaluated "on a couple of occasions" during service.  He 
reported back pain from the time of those injuries to the 
present.  The examiner reviewed the claims file and 
diagnosed "minor degenerative changes of the lumbar spine 
with chronic pain with flare-ups."  He opined that "there is 
no documentation or support for the Veteran's low back 
problem having its clinical onset in military service."  He 
specifically relied on the absence of any evaluation of, 
complaint of, or treatment for low back pain in the STRs.

The medical opinion is incorrect with respect to the history 
of low back pain as shown in the STRs.  An opinion based on 
incorrect facts has little probative value.  Reonal v. 
Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based 
on an inaccurate factual premise is not probative).  To the 
extent that there has not been substantial compliance with 
the December 2010 remand directives, a remand is once again 
necessary.  See Stegall v. West, 11 Vet. App. 268 (1998) 
(where remand orders of the Board or the Court are not 
complied with, the Board itself errs in failing to insure 
compliance).

Accordingly, the case is REMANDED for the following action:

(This appeal has been advanced on the Board's docket 
pursuant to 38 C.F.R. § 20.900(c) (2013).  Expedited 
handling is requested.)

1.	Schedule the Veteran for a VA 
orthopedic examination by an 
appropriate medical professional to 
determine the nature, extent, and 
etiology of any current back 
disability(ies) that he may have.  The 
claims file, to include a copy of this 
remand, must be made available to the 
examiner for review.  A notation to the 
effect that this review has taken place 
should be made in the examination 
report.  All indicated tests and 
studies should be performed. 

If a chronic back disability is 
diagnosed on examination, the examiner 
should express an opinion as to whether 
it is at least as likely as not, i.e., 
50 percent probability or greater, that 
such disability had its clinical onset 
during the Veteran's active service or 
is otherwise related to any such 
service.  The examiner should consider 
the November 1986 and September 1987 
STRs.

A full and complete rationale for all 
opinions expressed is required.  If the 
examiner feels that the requested 
opinion cannot be rendered without 
resorting to speculation, the examiner 
should state whether the need to 
speculate is caused by a deficiency in 
the state of general medical knowledge 
(i.e. no one could respond given 
medical science and the known facts) or 
by a deficiency in the record or the 
examiner (i.e. additional facts are 
required, or the examiner does not have 
the needed knowledge or training).

2.	Then, readjudicate the back claim.  If 
the benefit sought remains denied, 
issue a supplemental statement of the 
case and provide the Veteran and his 
representative the requisite period of 
time to respond.  The case should then 
be returned to the Board for further 
appellate review, if otherwise in 
order.  No action is required of the 
appellant unless he is notified.

The appellant 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).



______________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs