Citation Nr: 1332032 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 08-26 295A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for actinomycosis, status post right thoracotomy. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran had active service from October 1955 to August 1976. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2007 RO decision which reopened the claim for service connection for actinomycosis, status post right thoracotomy but denied the claim on a de novo basis and denied service connection for COPD, including on a secondary basis. In February 2010, the Board denied the issues currently on appeal, and he appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2011 Memorandum Decision, the Court vacated the February 2010 Board decision and remanded the appeal to the Board for further action. The Veteran's appeal was remanded by the Board in April 2012 for additional development, specifically to obtain a medical opinion. A medical opinion was obtained during the May 2012 VA examination. The directives of the remand having been completed, the Board finds that an additional remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998). In February 2013, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). The requested opinion was received in April 2013. In May 2013, the Veteran was informed that the Board had requested a specialist's opinion in conjunction with the adjudication of his appeal, provided him a copy of that opinion and indicated that he was entitled to submit additional evidence or argument provided within 60 days of the date of that letter. He indicated that he wished for the RO to readjudicate his appeal taking into account the newly obtained VHA opinion. The case was remanded in July 2013, readjudicated in the July 2013 supplemental statement of the case, and recertified to the Board in August 2013. Accordingly, consideration of the case may proceed. The appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a) (2) (West 2002). FINDINGS OF FACT 1. The Veteran's service treatment records show complaints of chest pain that were ultimately found to be related to alcohol use or gastrointestinal causes, and a 1974 chest X-ray on reenlistment revealed slight scarring at the left base with some calcification of the left hilar node, but no diagnosed respiratory disability. 2. Diagnoses of actinomycosis by history and COPD are of record. 3. The evidence does not establish a relationship between the Veteran's military service and his actinomycosis. 4. The evidence does not establish a relationship between the Veteran's COPD and his military service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for actinomycosis have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2013). 2. The criteria for service connection for COPD have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A December 2006 letter satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. VA was notified in February 2008 that the Social Security Administration (SSA) held no records concerning the Veteran. 38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). A VA examination was conducted in May 2012 and a VHA specialist opinion obtained in April 2013; together, this examination and VHA opinion address the questions of medical fact posed by the record. Review of the record does not indicate that additional evidence pertinent to the issues adjudicated in this decision is available, but not associated with the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of sufficient notice is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). The Veteran's service treatment records do not reflect that he reported any respiratory symptoms during service or that any respiratory disability was diagnosed during service. While multiple service treatment records reflect that the Veteran was evaluated for complaints of chest pain in the low sternal or epigastric region during service, those records do not reflect any complaints such as shortness of breath, chest tightness, or a productive or chronic cough. The Veteran's perceived "chest pain" was found to actually be epigastric pain due to alcohol use, especially as it resolved after he stopped drinking. While an August 1974 chest X-ray on reenlistment revealed slight scarring at the left base with some calcification of the left hilar node, but was otherwise within normal limits, a September 1975 X-ray was within normal limits. The Veteran retired from service in August 1976. After service, a February 1978 employment examination report reflects the Veteran's specific denials of chest pains or respiratory problems; no pertinent abnormalities were noted on examination, and pulmonary function tests (PFTs) were normal. Thereafter, the Veteran was seen in December 1978 for pleuritic-type chest pains and productive cough with sputum, which he reported onset two to three months earlier, and denied any history of asthma, paroxysmal nocturnal dypsnea, orthopnea, or lung disease. Routine physical examination revealed some splinting of the right chest and decreased breath sounds in the right base along with dullness to percussion. Subsequent diagnostic testing revealed actinomycosis of the right lung base, and the Veteran underwent right thoracotomy with wedge resection. He was treated with penicillin and his post-operative course was uneventful. An August 1990 military medical facility record diagnosed COPD; a December 1992 pulmonary function study revealed mild obstructive pulmonary disease. Records from West Florida Medical Center and Columbia West Florida Regional Medical Center dated during the mid- to late 1990s show continuing treatment for COPD. The September 1999 VA examination diagnosed actinomycosis but did not state a medical nexus opinion. Private treatment records dated between April 2006 and December 2006 and January 2010 and March 2010 reflect continuing treatment for COPD, and notations of a history of actinomycosis in 1978. VA treatment records dated from November 2003 to December 2003, in March 2005, in March 2006, from February 2007 to March 2007, and from January 2009 to May 2013 also reflect continuing treatment for COPD and a notations of a history of actinomycosis. Specific records of note include a May 2012 VA treatment record documenting the results of PFTs and in which the treating VA physician found that the DLCO was severely reduced (36 percent), likely representing pulmonary fibrosis from asbestos and actinomycosis, and obstruction from the asthmatic bronchitis and COPD. Several opinions are of record as to the relationship between the Veteran's 1978 actinomycosis diagnosis and his military service. A February 2007 opinion by the Veteran's private physician, Dr. Shanahan, noted that he had previously treated the Veteran at a military facility before treating him in private practice, and stated that while he treated the Veteran for actinomycosis in 1978, he believed that the Veteran acquired the infection prior to his military retirement in 1976, and that the Veteran's history of asbestos exposure and large amounts of gunpowder plus history of smoking all rendered him more susceptible to the actinomycosis infection. In summary, he stated that the Veteran developed actinomycosis prior to his retirement from the military and required surgery shortly thereafter. A February 2007 opinion by another private physician, Dr. Fay, concluded that the Veteran had physiologic and anatomic severe impairment of his respiratory status dating back to his active duty period. In forming this conclusion, Dr. Fay noted that the Veteran had, prior to his military separation, visited the emergency room several times with shortness of breath, cough, and wheezing, and had an chest X-ray which was abnormal. After retirement, the Veteran was referred to him with a markedly abnormal chest x-ray that dated back to his active duty time, showing large pleural base mass on the right; a pleural biopsy in 1977 showed pulmonary actinomycosis. He added it was is impossible to tell, because of the pleural and parenchymal scarring on his chest X-ray, how much was due to pulmonary actinomycosis, which dates back to his active duty period, and how much was due to asbestos exposure or inhalational exposure to toxic fumes. The May 2012 VA examiner concluded that the Veteran's actinomycosis was less likely than not initially manifested in service, caused by service, or otherwise related to service, on the basis that the entirety of the service treatment records showed no actinomycosis, and that multiple chest X-rays dated between 1958 and 1974 were normal. The April 2013 VHA specialist opinion concluded that it was not as likely as not that the Veteran's actinomycosis, first diagnosed in 1978, was present prior to the Veteran's August 1976 retirement from military service. This opinion was based on alternative explanations for reports of chest and epigastric pain in May 1973 and March 1975 (to include alcohol use and reflux esophagitis, a lack of actinomycosis shown on in-service chest X-rays, and a lack of symptoms in the immediate post-service period to include in a February 1975 private treatment record. The VHA specialist also found that the actinomycosis most likely manifested shortly before the onset of symptoms in December 1978, being that many records recorded the onset of chest pain as in June 1978; more importantly, the Veteran reported his symptoms had begun a few months prior to the December 1978 diagnosis with no prior pulmonary disease, such that between the reports of the beginning of symptoms combined with the progression of chest imaging studies suggest that the onset of disease was likely in the 6-7 months prior to diagnosis, or in mid-1978. In a May 2013 letter, the Veteran's VA treating physician again concluded that the Veteran had actinomycosis on active duty, based on the data cited in his previous letter. After thorough review of the evidence, the Board finds that the evidence does not establish a relationship between the Veteran's military service and his 1978 diagnosis of actinomycosis. Dr. Fay's and Dr. Shanahan's 2007 opinion letters are not probative as they do not address the Veteran's long history of smoking. They also do not account for the normal chest X-rays shown at the end of his military service to include the September 1975 X-ray which was within normal limits, or explain why each of the Veteran's in-service complaints of chest pain were found to be related to either alcohol use or gastrointestinal reflux. To that end, the opinion of the May 2012 VA examiner is less probative as it appears to find or presume that the Veteran had no abnormal chest X-rays during service; as noted above, the August 1974 chest X-ray did reflect some abnormalities, but not actinomycosis or other clinical findings to suggest same. That said, this chest X-ray was still not normal and for the May 2012 VA examiner to find that the chest X-rays were normal through 1974 calls into question that examiner's review of the record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Thus, the most probative opinion is that of the April 2013 VHA specialist, who addressed both the Veteran's in-service chest X-ray, his history of in-service symptomatology as well as the post-service symptomatology prior to the actinomycosis diagnosis. Critically, as well, the April 2013 VHA specialist referenced accepted medical literature noting the approximate time of the Veteran's infection with actinomycosis based on the reported symptoms and timing of diagnosis. For this reason, service connection for actinomycosis is not warranted. Additionally, the record contains two opinions as to the etiology of the Veteran's COPD. The May 2012 VA examiner concluded that the Veteran's COPD was less likely than not proximately due to, the result of, or aggravated by residuals of actinomycosis; while it had been diagnosed by way of pulmonary function testing, it was more likely caused by and related to the Veteran's 24 pack year history of smoking. Conversely, in June 2010 and May 2012 statements, the Veteran's treating VA physician noted that the Veteran had asbestos exposure over a 14-year period from 1957 to 1971 and while it was impossible to ascertain how much of his present disability is due to asbestos lung and pleural disease, it is a moral certainty that a substantial amount of his present condition dates back to his asbestos exposure and the subsequent pleural and parenchymal damage to his lungs that exposure caused. Here, the Board finds that the May 2012 VA examiner's opinion is more probative than that offered by the Veteran's treating physician. The treating physician's statement does not address the factor of the Veteran's long-term smoking (noted to have been as much as 24 pack-years), which is especially probative in determining the etiology of an obstructive (versus restrictive) lung disorder. Again, not considering this factor makes the opinion less informed. See Nieves-Rodriguez, supra. On this basis, the Board finds that service connection for COPD is also not warranted. The preponderance of the evidence is against the claim. There is no doubt to be resolved, and the claims for service connection for actinomycosis and for COPD must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for actinomycosis is denied. Service connection for COPD is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs