Citation Nr: 1331713	
Decision Date: 10/02/13    Archive Date: 10/07/13

DOCKET NO.  13-04 319	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1.  Entitlement to service connection for residuals of histoplasmosis with subsequent pulmonary changes.

2.  Entitlement to service connection for a respiratory disability, other than residuals of histoplasmosis, to include emphysema and chronic obstructive pulmonary disease (COPD).  


REPRESENTATION

Appellant represented by:	Teena Petro, Agent


ATTORNEY FOR THE BOARD

A. VanValkenburg, Associate Counsel





INTRODUCTION

The Veteran served on active duty with the United States Army from December 1970 to November 1972. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from the July 2010 decision by the Indianapolis, Indiana, Regional Office (RO) of the United States Department of Veteran Affairs (VA), which denied service connection for residuals, multiple calcifications, both lungs to include chronic bronchitis, shortness of breath, pharyngitis and laryngitis.
 
The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure complete review of the evidence of record.  
 

FINDINGS OF FACT

1.  The Veteran currently has pulmonary calcifications consistent with an in-service histoplasmosis infection.

2.  The Veteran's current emphysema and COPD were was not first manifested in service, and the preponderance of the medical evidence is against a finding that any pulmonary disability, other than pulmonary calcifications as a residual of histoplasmosis, are otherwise related to his period of service.



CONCLUSIONS OF LAW

1.  The criteria for entitlement to service connection for residuals of histoplasmosis to include lung calcifications in both lungs have been met. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).

2.  The criteria for entitlement to service connection for emphysema and/or COPD have not been met. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duty to notify and assist 

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.  A November 2009 letter satisfied the duty to notify provisions.  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 November 2009 letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

VA has also met its duty to assist the Veteran in the development of the claim.  The VA treatment records and examination have been obtained in the development of the claim.  38 U.S.C.A § 5103A, 38 C.F.R. § 3.159.   The Veteran has not identified private treatment records and the record contains no evidence the Veteran is in receipt of Social Security Administration (SSA) disability benefits.

The Veteran has been afforded a VA examination conducted in January 2013; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes.  38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  A medical examination is adequate "where it is based upon consideration of the Veteran's prior medical history and examination and also describes the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one." Stefl v. Nicholson, 21 Vet App. 120, 123 (2007).  The report must contain clear conclusions and supporting data, as well as "a reasoned medical explanation" connecting the data and conclusions.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008).  The VA examiner considered Veteran's description and history of his symptoms, reviewed the claim file, conducted a thorough examination and provided a detailed report of the Veteran's condition with a clear opinion and rationale connecting the evidence to her conclusions. The examination report contains sufficient findings for the Board to render a decision in this appeal.  

Service Connection

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, 1131; 38 C.F.R. § 3.303.  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in-service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).  

In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  In the absence of proof of a present disability there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected.  If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required.  Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, the chronic diseases listed in 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a).  The Veteran's current respiratory disabilities are not included on the list of chronic diseases accordingly, 38 C.F.R. § 3.309(b) is not applicable in the current case.

VA adjudicators are directed to assess both medical and lay evidence.  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)(a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002)(tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  A layperson is generally not capable of opining on matters requiring medical knowledge and, specifically is not competent to provide an opinion as to etiology in such cases.  Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998).

The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim).  


Analysis

In this case, the Veteran seeks entitlement to service connection for residuals, multiple lung calcifications, both lungs to include shortness of breath, pharyngitis and laryngitis and COPD.  He essentially asserts that his current diagnosed disorders are related to his period of service.

As noted above, in order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus or relationship between the two. See Hickson v. West, 12 Vet. App. at 253.

With respect to element (1), the medical evidence of record demonstrates that the Veteran has current diagnoses of COPD with emphysematous changes and residuals of histoplasmosis.  It is clear that element (1), current disability, is satisfied for the claim.  

The Board will now turn to whether the evidence of record supports element (2), in-service disease or injury.  The Veteran's entrance examination in December 1970 did not include any notations of respiratory problems.  Clinical records indicate the Veteran was treated in February 1971 for acute pharyngitis, laryngitis and bronchitis with symptoms of coughing reported.  The October 1972 exit examination noted a chest x-ray found multiple calcifications in both lungs suggesting old granulomatous disease.  The Veteran was assessed for his history of lung disease with multiple pulmonary calcifications in November 1972.   The VA examiner indicated he had no symptoms and his condition "should not hold up" his expiration of term of service.  The evidence of record demonstrates that the Veteran was treated for respiratory conditions and pulmonary calcifications, therefore Element (2), an in-service injury or disease, has been satisfied.

The Board turns to element (3), nexus or relationship.   With respect to residuals of histoplasmosis, the 2013 VA examiner noted the Veteran's service treatment records (STRS) indicated that he was treated for bronchitis during his military service.  The physician noted the Veteran had a normal chest x-ray on his induction examination but his x-ray at time of separation was remarkable for multiple calcifications consistent with old granulomatous disease, such as histoplasmosis.   Current X-rays show that the Veteran currently has pulmonary calcifications.  While the VA examiner reported there was no evidence of pulmonary fibrosis on the Veteran's chest x-rays, which would be prevalent with progressive histoplasmosis, the VA examiner opined that it is as least as likely as not that the respiratory infection, for which the Veteran was treated during his service, was a result of histoplasmosis and subsequent pulmonary calcifications.  Accordingly, the Board concludes that, as these residuals of histoplasmosis were initially manifested during service and have remained since service, service connection for residuals of histoplasmosis, to include pulmonary calcifications, is warranted.

However, with respect to the Veteran's other pulmonary disabilities including emphysema and COPD, the Board finds that the weight of the evidence is against a finding of service connection.  In this regard, the 2013 VA examiner addressed the Veteran's description of increased respiratory symptoms over the years which consisted of dyspnea with mild activity, chronic cough and waking up at night with shortness of breath.  The 2013 VA examiner noted the Veteran had a 60 pack a year history of smoking.  The physician stated medical literature listed smoking as the primary cause of COPD.  The VA examiner opined, in light of the Veteran's stable histoplasmosis, "it is less likely as not that Veteran's COPD with lung calcifications incurred in or has been caused by a lung disease shown as bronchitis and evidence of lung calcifications that occurred between December 1970 and October 1972."  

The physician conducted a thorough examination, reviewed the claim file and received a history of symptoms from the Veteran and provided a detailed explanation linking the evidence to conclusions.  Therefore, the Board finds the VA examiner's conclusion that the Veteran's the Veteran's COPD with emphysematous changes is not caused by or a result of any lung disease or evidence of calcifications incurred in-service is to be afforded the greatest weight.

In support of his claim, the Veteran submitted statements asserting he did not have any breathing problems or lung issues prior to service.  He explained in basic training in Ft. Knox, KY he was required to sleep outside in below zero temperatures for four nights while on bivouac and developed acute pharyngitis and laryngitis.  The Veteran pointed to his medical examination upon discharge from active duty which found multiple calcifications in both lung fields and perihilar regions suggestive of old glaucomatous disease.   The Board finds the Veteran's reports of duties in-service and description of diagnosis from doctors competent and credible, as they are consistent with the record.  However, the evidence has been considered by the VA examiner and the physician was unable to find a nexus linking the in-service symptoms and the current COPD and emphysema.  

Based on the foregoing, the Board concludes that the preponderance of the evidence, while supporting a claim for service connection for residuals of histoplasmosis, is against the Veteran's claim for service connection for a respiratory disability other than as a residual of histoplasmosis.  38 C.F.R. §§ 3.1(m) & (n), 3.102, 3.301. 

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ORDER

Service connection for residuals of histoplasmosis is granted, subject to the law and regulations governing the payment of VA compensation.

Service connection for respiratory disability, other than as a residual of histoplasmosis, to include COPD and emphysema, is denied. 



____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs