Citation Nr: 1331737 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 09-48 818 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to service connection for a lung disability, to include as secondary to ischemic heart disease. REPRESENTATION Appellant represented by: Hawaii Office of Veterans Services WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran had active service from July 1962 to May 1965. This matter initially came before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii which, among other things, denied entitlement to service connection for a lung disability. In January 2010, the Veteran testified during a hearing before a decision review officer (DRO) at the RO. In July 2010, the Veteran testified during a hearing at the RO before the undersigned. A transcript of each hearing is of record. The Board remanded the claim to the RO, via the Appeals Management Center (AMC) in February 2011 and again in June 2012. In February 2013, the Board requested a medical expert opinion pursuant to VHA Directive 2010-044 (Sept. 29, 2010). In March 2013, the Board requested a clarifying addendum. The addendum has been received and the Veteran indicated in August 2013 that he had no further argument or evidence to submit and requested that the Board immediately proceed with adjudication of his appeal. The Board will do so. The issue of entitlement to a total disability rating based on individual unemployability has been raised by the record, but has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. A current lung disability has not been caused or aggravated by service-connected ischemic heart disease. 2. A current lung disability did not manifest in service and is unrelated to service. CONCLUSIONS OF LAW 1. A current lung disability is not proximately due to, the result of, or aggravated by service-connected disease or injury. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). 2. A current lung disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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 (2006). In a June 2007, November 2008, and December 2009 letters, the RO notified the Veteran of the evidence needed to substantiate the claim for entitlement to service connection for a lung disability. The letters did not refer specifically to secondary service connection, but the Veteran's statements and hearing testimony reflect that he understood he had to show a relationship between a current lung disability and service-connected heart disability. As the Veteran had actual knowledge as to what was needed to establish entitlement to service connection on a secondary basis, any error in this regard was harmless. See George-Harvey v. Nicholson, 21 Vet. App. 334, 339 (2007). These letters also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In any event, the above-noted letters complied with this requirement. The Veteran has substantiated his status as a veteran. The Veteran was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in the above-noted letters. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service private and VA treatment records. The Veteran was also afforded multiple VA examinations and, when these were found inadequate, a VHA opinion was sought. When the VHA opinion was found to be deficient because it did not address aggravation, a clarifying addendum was sought and obtained. VA thus complied with its duty to assist the Veteran. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim for entitlement to service connection for a lung disability is thus ready to be considered on the merits. Analysis The Veteran claims that he has a current lung disability that is related to his service-connected ischemic heart disease, with specific emphasis on a 1986 pulmonary embolism and its residual effects. While service connection is warranted where a current disability resulted from an injury or disease incurred in or aggravated by active military service, 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a), service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(b). This latter provision was added as part of an amendment intended conform VA regulations to Allen v. Brown, 7 Vet. App. 439 (1995), and also limited the circumstances in which VA would concede aggravation. See 71 Fed. Reg. 52,744 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310(b)). The Board will find below, however, that there is no aggravation. The Veteran was granted service connection for ischemic heart disease in the Board's February 2011 decision. The Board found that the Veteran had been diagnosed by a private doctor in July 2006 with hypertensive arteriosclerotic heart disease, on May 2010 VA examination with ischemic heart disease with a silent myocardial infarction, on electrocardiogram in 1986, and in a May 2010 letter from the Veteran's private physician, who indicated that the Veteran "has evidence of ischemia with documentation of an old heart attack in 1989." On the May 2011 VA examination, a VA physician, Dr. "W.L." diagnosed chronic obstructive lung disease not verified by chest X-ray, and opined that this lung disability was not the result of an injury or incident during active service or his service connected ischemic lung disease. He reasoned, "I am not sure of what his [service-connected] lung disease is but if it is the 1986 from pulmonary embolism due to Protein C deficiency which occurred after leaving the service, this is definitely not related." In its June 2012 remand, the Board found this opinion inadequate for rating purposes, in part because it did not address whether the Veteran's lung disability was aggravated by his service connected ischemic heart disease. The Board instructed that Dr. W.L. be asked to opine as to whether the Veteran's current respiratory problems have been aggravated by his service connected disabilities, primarily his ischemic heart disease, and that a complete rationale for any opinion be provided. In September 2012, Dr. W.L. offered three opinions. He first opined that current lung disability was not likely incurred in or caused by in-service injury, event, or illness. His rationale was that the Veteran was found to have a silent myocardial infarction on electrocardiogram in 1989 without chest pain, that he had nitroglycerin and had never taken it, and that the Veteran had "[n]o current problems with his heart as per last cardiology consult." Dr. W.L. also opined that the current lung disability was not likely proximately due to or the result of the Veteran's service connected disability. His rationale was identical to that expressed with regard to his first opinion with regard to causation by in-service injury, event, or illness. Dr. W.L. also offered an "opinion regarding conflicting medical evidence," which was that the "Veteran's current respiratory problems (chronic obstructive lung disease) is not aggravated by his service connected ischemic heart disease." For several reasons, the Board finds the September 2012 opinion is not adequate for rating purposes, and does not substantially comply with the Board's remand instructions. First, Dr. W.L. did not offer a rationale in connection with his opinion that current respiratory problems are not aggravated by service connected ischemic heart disease. Second, even if the Board were to assume that his rationale offered in connection with his first two opinions was equally applicable to the third, it would have to find this rationale to be flawed. The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran filed his claims for service connection in this case in May 2007. The Board's February 2011 decision granting service connection for ischemic heart disease was based on multiple diagnoses during the appeal period from May 2007 to February 2011, and implicitly found that the Veteran had some impairment due to his ischemic heart disease during that time period. Consequently, the rationale that the Veteran "has no current problems with his heart" is flawed. The Board also notes that Dr. W.L. himself conducted an October 2007 VA diabetes examination and concluded, "Although the [Veteran] has hypertension and cardiac problems there is not enough information to link these to [his diabetes]." This conflicts with Dr. W.L.'s later statement that the Veteran had no current problems with his heart, given VA's definition of "current disability." There is thus evidence that the Veteran has had heart disability, i.e., impairment to his heart, due to his service connected ischemic heart disease during the appeal period beginning in May 2007 and the opinion of no causation or aggravation from ischemic heart disease because of a lack of current heart problems is inadequate and did not comply with the Board's remand instructions. The Board therefore requested a VHA opinion and one was provided by Dr. "S.T." Dr. S.T. noted her review of the file and that the Veteran had complained of shortness of breath since 1986 and his diagnosis around that time of pulmonary embolism attributed to protein C deficiency. She noted the fact that he remained on Coumadin and continued to have some shortness of breath although he can walk up to 2 miles per day without limitation. She also noted wheezing and inhaler treatment, as well as productive cough possibly due to post nasal drip or allergic rhinitis and mild asthma. She noted his minimal smoking history, less than the usual amount that would cause COPD, and his weight that likely contributes to his dyspnea. She also noted mild obstruction on PFT testing, mild abnormalities on May 2010 echocardiogram with no evidence of pulmonary hypertension or diastolic dysfunction. She found that if the Veteran had any further sequelae from his pulmonary embolism one would expect to see pulmonary hypertension. She noted vague left lower lobe opacity on May 2011 chest radiograph. She also noted his Vietnam service and presumed Agent Orange exposure. In her impression, Dr. S.T. found the Veteran's dyspnea multifactorial due to mild asthma and obesity and concluded, "I see no evidence that his lung condition is caused by ischemic heart disease." She added that "if he had any sequelae from his pulmonary embolism in 1986 one would expect to see pulmonary hypertension on his echocardiogram" As Dr. S.T. explained the reasons for her conclusions based on an accurate characterization of the evidence of record, her opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). She considered various possible causes of lung disability, noted other apparent causes, and specifically explained why pulmonary embolism was not likely a cause. She did not, however, address the question of whether heart disease aggravated a current lung disability. Dr. "G.B.", Chief of the Pulmonary Section, did address this question. Dr. G.B. noted the definition of aggravation to include a permanent increase in severity of the underlying disability beyond its natural progress. He noted the service connected cardiac disease, the May 2010 diagnosis of mild COPD, the spirometry indication of mild reversible airways obstruction and the normal chest radiograph. He opined that the mild reversible airway obstruction was not disabling, and that reversible airways obstruction can only be caused or aggravated by cardiac disease by one mechanism, congestive heart failure due to fluid buildup in the lungs, and that the Veteran did not have and had never had congestive heart failure. He also noted that the airways obstruction was reversible and could therefore not be considered to have been permanently aggravated. Dr. G.B. also noted that restrictive lung dysfunction may result from medication given for cardiac disease, typically Amiodarone, the record indicated neither that the Veteran had restrictive lung disease nor had taken Amiodarone. He therefore concluded that the service-connected heart disability did not likely cause or aggravate the Veteran's non-service connected lung disability. Dr. G.B. explained the reasons for his conclusions based on an accurate characterization of the evidence of record. He considered the nature of the current lung disability and its possible causes and found that the Veteran's service connected heart disease was not one such cause. His opinion, including as to lack of aggravation, is therefore entitled to substantial probative weight. Nieves-Rodriguez, 22 Vet. App. at 304. The two VHA opinions thus constitute significant probative evidence that the Veteran's service-connected heart disease neither caused nor aggravated his lung disability, including consideration of the pulmonary embolism, and weigh against the claim. Moreover, there are no contrary medical opinions. As to the Veteran's statements attributing his pulmonary embolism and residual effects to his service connected heart disease, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, the Veteran's testimony as to the relationship between his lung disability and heart disease is testimony as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). To the extent that the Veteran is competent to opine on this question, the Board finds the specific, reasoned opinions of the trained health care professionals to be of greater probative weight than the Veteran's lay assertions. The weight of the evidence is thus against a relationship between the Veteran's service connected heart disease and his current lung disability, to include on an aggravation basis. As to other theories of entitlement, none are reasonably raised by the evidence of record. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (in direct appeals, all filings must be read in a liberal manner); EF v. Derwinski, 1 Vet. App. 324, 326 (1991) (Board must review all issues reasonably raised from a liberal reading of all documents in the record). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran did not claim and the evidence does not reflect lung disability or symptoms in service or for many years thereafter or that there is a relationship between current lung disability and service. The lungs and chest were normal on the April 1965 separation examination and the Veteran indicated that he did not have and had never had asthma, shortness of breath, or pain or pressure in chest. Moreover, none of the lung disabilities with which the Veteran has been diagnosed are presumed service connected in those such as the Veteran who are presumed to have been exposed to Agent Orange during their service in Vietnam. See 38 U.S.C.A. § 1116(a)(2) (West 2002); 38 C.F.R. § 3.309(e) (2013). Entitlement to service connection for a lung disability is therefore not warranted under any other theory. For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for a lung disability. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to service connection for a lung disability, to include as secondary to ischemic heart disease is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs