Citation Nr: 1330876 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 06-32 607 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a lung disability manifested by recurrent pneumonia. 2. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1964 to December 1968, including service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from March 2005 and November 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California,. The Veteran testified at a Board hearing in August 2010. He additionally testified at hearings before RO Decision Review Officers (DROs) in February 2007 and August 2009. Transcripts of those hearings are of record. In a January 2011 decision, the Board reopened the Veteran's claim of entitlement to service connection for recurrent pneumonia based on the receipt of new and material evidence. In that decision, the Board additionally expanded the Veteran's claim of entitlement to service connection for depression as a claim of entitlement to service connection for a psychiatric disability, to include PTSD. The Board then remanded both claims for further evidentiary development. In September 2012, the Board again remanded both claims on appeal for further evidentiary development. The Board additionally disposed of multiple other service connection claims in both the January 2011 and the September 2012 decisions. The issue of entitlement to service connection for a psychiatric disability, to include PTSD, 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. VA will notify the Veteran if further action is required on his part. FINDING OF FACT The evidence with respect to whether the Veteran incurred a lung disability during or as a result of his active service is at least in equipoise. CONCLUSION OF LAW The criteria for service connection for a lung disability manifested by recurrent pneumonia have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to service connection for a lung disability manifested by recurrent pneumonia. As this represents a complete grant of the benefits sought on appeal with respect to that claim, no discussion of VA's duty to notify and assist pursuant to the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012), is necessary at this time. I. Governing Law and Regulations Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for certain chronic diseases, including bronchiectasis, when such disability is manifested to a degree of 10 percent or more within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112(a) (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). When service connection for chronic diseases is at issue, the second and third elements for service connection may be established by showing continuity of symptomatology. See Walker, 701 F.3d 1331. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). II. Analysis The evidence of record clearly establishes that the Veteran has suffered from a lung disorder manifested by recurrent pneumonia during the pendency of his appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). He has repeatedly suffered from pneumonia, including episodes in February 2008, June 2009 and April 2012. Also, in an August 2009 VA treatment report, his active problems were noted to include mild centrilobular emphysema with chronic bronchiectasis and recurrent pneumonia. He was noted to be on suppressive Bactrim daily. Clearly, the first required element for service connection has been met. Turning to the second required element for service connection, an in-service incurrence of a disease or injury, a review of the Veteran's service treatment records (STRs) reveals that he was diagnosed with pneumonia in March 1968, while serving aboard the U.S.S. Ticonderoga. March 1968 X-ray reports show that he had pneumonia affecting, at least in part, the right middle lobar region of his lungs. He additionally suffered additional respiratory ailments, including sore throats, during service. The Veteran additionally testified during his August 2009 DRO hearing that he was treated for another respiratory episode, which he believed included bronchiectasis, during his period of basic training. A November 2012 VA examination report noted his contention of also suffering from pneumonia in 1964 during basic training. He additionally testified that he was exposed to respiratory contaminants as a result of doing grinding, painting, and chipping, while servicing as a deckhand aboard his ship. His November 1968 separation examination revealed negative findings for any disability. Based on the evidence of record showing that the Veteran's suffered from in-service respiratory ailments, including pneumonia, the Board finds that the second required element for service connection has been met. The remaining question before the Board is whether there is a nexus between the Veteran's current lung disorder, manifested by recurring pneumonia, and his in-service respiratory conditions. A review of the record reveals that following the Veteran's separation from service, he has suffered from at least an additional 10 episodes of pneumonia over the years, beginning with post-service episodes in 1968, 1975, and 1986. His post-service diagnoses have consistently included recurrent pneumonia, recurrent bronchitis, bronchiectasis, and chronic obstructive pulmonary disorder. An opinion received from the Veteran's treating VA physician in August 2004 indicated that he was had been treated by the physician for nearly two years, and that he had given a very consistent history of multiple bouts of pneumonia dating back to his time in service. The physician opined that the Veteran's medical history and treatment response sternly supported a diagnosis of bronchiectasis starting from his first bout of pneumonia in the late 1960s. The Veteran additionally submitted two additional letters from another VA physician in support of his claim. In these letters, the physician indicated that the Veteran's recurrent pneumonia of the lower left lobe was deemed to be consistent with bronchiectasis, which was likely the cause of his consistent chronic cough and mucous production, contributing to his chronic pulmonary issues. An additional, undated, opinion from another VA physician indicated that after treating the Veteran for five years and noting his history of recurrent pneumonia, it was the physician's opinion that it was more likely than not that the Veteran's chronic pneumonia was incurred as a result of his military service. Aside from these favorable opinions, two additional VA examination reports have reached the conclusion that an etiology opinion regarding the Veteran's lung disability manifested by recurring pneumonia could not be made without resort to speculation. In a March 2011 examination report, a VA examiner indicated that the reasons for the Veteran's recurrent pneumonia were not clear. She noted that while possibly related to bronchiectasis, a March 2010 X-ray report did not describe evidence of bronchiectasis. She additionally noted that it was unclear whether the Veteran suffered left lower lobe pneumonia during service. The examiner concluded that she could not provide an opinion with respect to whether the Veteran had an in-service pneumonia which predisposed him to recurrent pneumonia without speculating. A subsequent November 2012 VA examination report indicated that November 2012 X-ray results showed that the Veteran's left lower lobe opacification, as noted during hospitalization in April 2012, had cleared. A persisting right middle lobe atelectasis was noted. That examiner also opined that he could not resolve whether the Veteran's lung disability was incurred during or as a result of service without resort to speculation. He noted that the Veteran was found to have a successfully controlled chronic viral infection that made him susceptible to bacterial, fungal, and other viral infections. Namely the Veteran had human immunodeficiency virus (HIV). The examiner acknowledged the possibility that the viral infection was incurred during service; however, the examiner concluded that providing an etiology opinion would be speculative. At this juncture, the Board notes that the Veteran's in-service X-ray records specifically noted a pneumonia infection affecting his right lung and middle lobe. The Veteran, however, testified that his in-service pneumonia infection affected his left lower lobe. Such infection of the lower left lobe cannot be ruled out from review of his STRs. Given the Veteran's experience with repeated pneumonia infections and his testimony regarding in-service medical findings reported to him, the Board finds his report to be competent and credible. The Board concludes that the evidence in this case is at least in equipoise with respect to whether the Veteran's current lung disability manifested by recurrent pneumonia was at least as likely as not incurred during or as a result of his service. Four favorable opinions provided by VA physicians have indicated that the Veteran's recurrent pneumonia was incurred as a result of his service, including as a result of probable bronchiectasis. Although the VA physicians who provided these opinions did not clearly have access to the Veteran's entire record, such is not detrimental to the Veteran's claim as the Veteran gave a reliable medical history in an effort to obtain medical treatment for his condition, and the VA physicians all provided findings consistent with other medical evidence of record. See Nieves-Rodriguez, 22 Vet. App. 295 (finding that the mere fact that an examiner did not review the claims file does not render a medical examination inadequate, particularly where the content of the examination shows that the examiner was familiar with the Veteran's history). The Board finds that the favorable medical opinions of record are at least as persuasive as the findings made by the two VA examiners that providing an opinion regarding the etiology of the Veteran's recurrent pneumonia would be speculative. Accordingly, the Board will afford the Veteran's the full benefit of the doubt and find that the final required element for service connection has been met. In reaching this conclusion, the Board observes that an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Rather, this need only be an as likely as not proposition for all reasonable doubt to be resolved in the Veteran's favor and his claim resultantly granted. See 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for a lung disability manifested by recurrent pneumonia is granted. REMAND The Veteran's remaining claim on appeal is that of entitlement to service connection for a psychiatric disability, to include PTSD. Unfortunately, another remand is required with respect to that issue. As the Board noted in the January 2011 decision, the Veteran's contentions regarding the nature and etiology of his claimed psychiatric disorder are somewhat unclear. He has claimed psychiatric disabilities including depression and a personality disorder, and more recently, has alluded to developing PTSD as a result of his experiences aboard the U.S.S. Ticonderoga. The Veteran testified about an incident aboard the U.S.S. Ticonderoga where he was present when a fellow service member was decapitated in an accident. He has additionally alleged exposure to other traumatic event during tours of duty in Vietnam. To this point, however, no development has been performed with respect to attempting to confirm alleged PTSD stressors. Thus, remand is necessary to conduct this important development. See M21-1, MR, Part IV, Subpart ii, Ch. 1, Sec. D, 14, f. Additionally, although the record shows treatment for psychiatric disabilities, including PTSD and a major depressive disorder, and although the Veteran has attributed these diagnoses to his service, including by means of secondary service connection, a VA examination has not been conducted to obtain an etiology opinion regarding the Veteran's diagnosed psychiatric disabilities. The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). As such, remand is also necessary in order to afford the Veteran an appropriate VA examination. Finally, as this claim is being remanded for the foregoing reasons, any recent VA treatment records should also be obtained on remand. In this regard, the Board observes that the Veteran had received fairly regular VA mental health treatment, and consistent records of his VA care, dated since August 2009, have not been associated with the claims file. Under the law, VA must obtain these records. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain a complete copy of the Veteran's VA mental health treatment records from the VA Medical Center in San Diego, California, dated since August 2009. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) (West 2002) and 38 C.F.R. § 3.159(e) (2012). 2. Request that the Veteran provide additional information pertaining to his alleged in-service stressors, to include the incident where a fellow service member was decapitated in an accident while aboard the U.S.S. Ticonderoga, including the location where each incident took place, and the approximate date and his unit of assignment at the time each event occurred. 3. Thereafter, make all reasonable attempts to corroborate the alleged stressor(s) reported by the Veteran. Attempts should include contacting the Defense Personnel Records Information System (DPRIS), and each reported assigned unit and assigned post. All attempts to verify alleged stressors should be documented in the claims file. 4. Thereafter, schedule the Veteran for a VA psychiatric examination by a psychiatrist or psychologist. The claims file and a complete copy of this REMAND must be made available to and reviewed by the examiner in conjunction with the examination. The VA examiner should indicate that this has been accomplished. All necessary studies and tests should be conducted. The examiner must provide an opinion as to whether the Veteran meets the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) criteria for any current psychiatric disorder, to include PTSD, and a major depressive disorder, and reconcile such findings with earlier diagnoses of record. The examiner should specifically provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed major depressive disorder, PTSD, and/or any other currently diagnosed psychiatric disorder had its clinical onset during his active service or is related to an in-service disease, event, or injury. In providing this opinion, the examiner should specifically address the Veteran's report of witnessing a fellow service member who was decapitated in an accident in addition to any other alleged stressor(s). Additionally, where a diagnosis of PTSD has been made in the record, the examiner should specify whether: (1) each alleged stressor found to be established by the evidence of record is sufficient to produce PTSD; (2) each diagnostic criterion to support the diagnosis of PTSD has been satisfied; and (3) there is a link between the current symptomatology and one or more of his in-service stressors sufficient to produce PTSD. The examiner must provide a rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 5. Readjudicate the Veteran's claim for service connection for a psychiatric disability. If the claim remains denied, provide him and his representative with a supplemental statement of the case, and after they have had an adequate opportunity to respond, return this appeal to the Board for further appellate review. The Veteran 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 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). ______________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs