Citation Nr: 1334098 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 07-31 562 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a chronic respiratory disorder. 3. Entitlement to service connection for an acquired psychiatric disorder as secondary to a chronic respiratory disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active military service from January to August 1957. He also served with Reserve components at various times. This matter arises to the Board of Veterans' Appeals (Board) from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, that denied service connection for a low back disorder, a respiratory disorder, and for any acquired psychiatric disorder, also claimed secondary to a chronic respiratory disorder. The Board remanded the case for development in August 2011. The record before the Board consists of paper claims files and an electronic file known as Virtual VA. The issues of entitlement to service connection for a chronic respiratory disability and for an acquired psychiatric disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's Service Treatment Reports (STRs) and service personnel records for active military service performed in 1957 have been destroyed in a fire at the National Personnel Records Center (hereinafter: NPRC). 3. An October 1973 enlistment examination report clearly indicates that the spine was normal at that time. 4. Currently shown are thoracolumbar spine arthritis, multi-level disc changes, bony spurs at T3 through L3, and marked disc narrowing at L2-3. 5. Competent evidence tending to link any low back disorder with active military service has not been submitted. CONCLUSION OF LAW A low back disability, currently diagnosed as thoracolumbar spine arthritis and/or degenerative changes of the thoracolumbar discs, was not incurred in active military service, nor may arthritis be presumed to have been incurred in active military service. 38 U.S.C.A. §§ 1110, 1111, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board remanded the case for development in August 2011. The United States Court of Appeals for Veterans Claims (Court) held that when the remand orders of the Board are not complied with the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). VA has reasonably complied with all remand orders of the Board. Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and VA must assist the claimant by making reasonable efforts to obtain all evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). A VA notice letter must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits and the notice letter must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). VA's notice requirements that are set forth at 38 U.S.C.A. § 5103(a) and at 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). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159 (b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, VA must notify the claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. VA's duty to notify the claimant was satisfied by letters sent to the claimant in March 2006. The March 2006 letters addressed all of the notice elements and was sent prior to the initial unfavorable decision by the RO in September 2006. VA's duty to assist the Veteran in the development of the claim has also been met. The STRs and all pertinent VA and private treatment records have been obtained and associated with the file. A VA examination and opinion with respect to the issue on appeal was obtained in January 2012. See 38 C.F.R. § 3.159(c) (4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The medical opinion obtained in this case is adequate. The medical examiner considered the pertinent evidence of record, clinical examination of the Veteran, and the statements of the claimant, and provided a rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion has been met. See 38 U.S.C.A. § 5103A (d) (2); 38 C.F.R. § 3.159(c) (4) (i); also see McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Service Connection Service connection may be established for 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 line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). The requirement for competent evidence of a disability is fulfilled when a diagnosis is offered. In many cases, only a diagnosis offered by a medical professional is a "competent" diagnosis; however, when a condition may be identified by its unique and readily identifiable features and capable of lay observation, a lay-diagnosis of the disorder is also competent. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). This is especially true where the lay diagnosis supports a later diagnosis offered by a medical professional. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The phrase "chronic disease" refers to those diseases listed under 38 U.S.C.A. § 1101 (3) and 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013) ("The clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). Where a chronic disease under 38 C.F.R. § 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question" (Walker, 708 F.3d at 1339), or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service¬connected disability compensation is sought." Walker, 708 F.3d at 1336. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the Veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. The evidentiary requirements for service connection afforded combat Veterans under 38 U.S.C.A. § 1154(b) are relaxed, but, because the Veteran was not in combat, he will not be afforded this consideration. Service Connection for a Low Back Disorder NPRC has confirmed that the Veteran's STRs, as well as his official personnel file, for active service in 1957, were destroyed in a fire at the NPRC in 1973. The Adjutant General for the State of Michigan has more recently located a report of medical history completed by the Veteran, and a report of medical examination, each completed in October 1973. The reports are negative for any complaints or findings of a low back disability. In the report of medical history, the Veteran specifically denied a history of recurrent back pain. The Veteran also checked "no" to the following question: "Have you ever been discharged from military service because of physical, mental, or other reasons?" In February 2006, the Veteran requested service connection for low back pain. He reported that he had back problems in active service in 1957 and has had back problems ever since. He has not alleged that a back problem arose during, or was caused by, or aggravated by, his Reserve component service in 1973 or 1974. In his October 2006 notice of disagreement, the Veteran reported that during basic training in 1957 he was forced to "duck walk for prolonged periods of time," which has caused chronic back problems ever since. In his September 2007 substantive appeal, the Veteran averred that he did not serve with a Reserve component in any capacity until 1973. In August 2011, the Board remanded the claim for a medical examination and opinion. A January 2012 VA spine compensation examination report reflects that X-rays showed multilevel disc changes, mild to moderate in degree. Bony spurs were seen at T12 through L3 level with most marked disc narrowing at L2-3. The physician reported that arthritis was shown. The physician opined that the current thoracolumbar spine condition was not related to active service. The rationale provided was that there is no documentation in the service records to substantiate that a chronic back disability manifested by "discomfort" was present during service. The examiner also stated that VA medical records appear to indicate that the Veteran injured the lower back in a June 2012 farm accident. The above-mentioned medical opinion is persuasive, as it is based on accurate facts and is supported by a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). While the physician's reasoning that a June 2012 injury could have caused the claimed back disorder is faulty, as the Veteran clearly applied for service connection for his back disorder several years prior to that injury, the fact that an October 1973 physical examination showed no back disorder is highly probative. While it is unfortunate that the STRs from the Veteran's active military service period in 1957 were destroyed, it is clear from the October 1973 military physical examination report that the spine was normal at that time. Although thoracolumbar spine arthritis is currently shown, the October 1973 military physical examination report clearly reflects that there was no arthritis in 1973. Thus, arthritis was not shown to have been manifested to a degree of 10 percent within a year of discharge from active military service in August 1957. Because the Veteran's 1973-1974 Reserve component service was not active military service, there is no need to address whether arthritis arose within one-year of separation from Reserve component service. The presumption of service connection for chronic diseases that become manifest to a degree of 10 percent or more within a year of separation, as set forth at 38 C.F.R. §§ 3.307, 3.309, do not apply to periods of active duty for training or inactive duty training. Biggins v. Derwinski, 1 Vet. App. 474 (1991). The Board must also address the competency, credibility, and probative value of the lay evidence. 38 U.S.C.A. § 7104(d) (1) (West 2002); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The lay evidence of record is competent with respect to observance of symptoms readily observable, such as back pain. However, the Board finds that the Veteran's report of low back pain since service is not credible. Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). Although the Veteran has reported that his back symptoms date back to active military service, that reported history is controverted by, and greatly outweighed by, the October 1973 medical examination report that clearly indicates that the spine was normal many years after discharge from active military service, and the October 1973 medical history report that he completed wherein he specifically denied a history of low back pain. Such reports were completed more contemporaneous to service. After considering all the evidence of record, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. The claim for service connection for a low back disorder is therefore denied. ORDER Service connection for a low back disorder is denied. REMAND Respiratory Disability Based on Claimed Exposure to Asbestos The Board notes that in his October 2006 notice of disagreement, the Veteran specifically withdrew his contention that he had a pulmonary disability due to exposure to asbestos in service. He stated that his withdrawal was based on a finding of no asbestosis in his lungs. However, he continued to assert that he has chronic obstructive pulmonary disease (COPD) that was initially demonstrated in service, and that he was released from active duty due to his lung problems. Evidence of record reflects diagnoses of asthma, emphysema, COPD, and chronic bronchitis. The Veteran alleges that he was exposed to asbestos fibers during active military service in 1957 while training to be a fireman. He claims that he has had no pre-service or post-service exposure to asbestos. As such, even in the absence of demonstration of asbestosis, the Veteran's claim for service connection for a pulmonary disability, however diagnosed, remains for appellate consideration, to include on the basis of exposure to asbestos. There is no specific regulation concerning VA development for alleged exposure to asbestos, nor is there any statutory or regulatory presumption available to the Veteran; however, the Court has noted that development is required in adjudicating asbestos cases, including determining whether exposure has occurred. See VAOPGCPREC 6-2000; see also VBA Manual M21-1, Part VI. Because the STRs were destroyed in a fire at NPRC, the Board concludes that military records do not demonstrate evidence of asbestos exposure in service; however, as noted above, in VAOPGCPREC 4-2000, VA's General Counsel suggested that a claimant may provide competent evidence of in-service exposure to asbestos. Resolving any remaining doubt in favor of the Veteran, the Board finds competent, credible, and persuasive lay evidence of exposure to asbestos during active service while training as a fireman. Where records are presumed to have been lost in a fire at NPRC, the Board has a heightened duty to explain its findings and conclusions and to consider the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); however, where a diagnosis is not supported by the findings on the examination report, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2. The recent VA examination reports and the reasons that they must be returned to the examiner for clarification are discussed below. In November 2005, the Veteran applied for service connection and reported that during training at Fort Leonard Wood, from January through August 1957, he was repeatedly treated for lung problems and then discharged when his breathing problems precluded performing his assigned duties. He reported that he has continued to experience respiratory symptoms even since then and that a diagnosis of COPD (chronic obstructive pulmonary disease) has been offered. In December 2005, the Veteran's former spouse recalled that the Veteran's respiratory problem arose in 1957 when he was in basic training at Fort Leonard Wood. She also recalled that the Veteran was relieved of his military service because of his medical condition. In December 2005, the Veteran submitted a letter from his private physician, C. Tubbs, M.D. Dr. Tubbs related that the Veteran had been exposed to asbestos while training to be a fireman during active service. Dr. Tubbs reported that the Veteran currently had COPD, which is "as likely as not" related to asbestos exposure during active service. Although the earlier-dated STRs concerning active service in 1957 were destroyed by fire at NPRC, a 1973 enlistment examination report for enlistment into a Reserve unit was not at NPRC in 1973. The October 1973 enlistment examination report reflects that the respiratory system was normal. The Veteran completed a medical history questionnaire, but it is illegible over the portion of the form on which he might have indicated a history of respiratory troubles; however, the form reflects that he did check "no" to the following question: "Have you ever been discharged from military service because of physical, mental, or other reasons?" A May 2007 VA respiratory disease compensation examination report reflects that the Veteran reported breathing troubles over most of his life and that COPD was found about 15 years earlier. The Veteran reported smoking during active service in 1957, but that he quit 2 to 3 years later. The examiner noted a respiratory-related hospitalization in 1997. The Veteran had a history of asthma with one or two attacks per year. Wheezing recurred as often as monthly. Dyspnea was shown. There was frequent chest pain on exertion. X-rays showed no evidence of asbestosis. The overall impressions were severe obstructive ventilator defect/COPD with no significant response to bronchodilators and a mild restrictive ventilator defect. The examiner opined that it is less likely than not (less than 50 percent probability) that the current disease, also known as idiopathic pulmonary fibrosis, is related to asbestos exposure. In August 2011, the Board remanded the claims for medical examinations and opinions. A January 2012 VA respiratory compensation examination report, in the form of a disability benefits questionnaire, reflects that the diagnosis was COPD. See page 12 of the examination report. Yet, at page 14, the examiner indicated that the Veteran has no pulmonary condition. But then, at page 16, the examiner attributes a productive cough to bronchiectasis. The examiner offered the following conclusion and rationale: Veteran's COPD is not caused by or a result of military service. Chest X-ray evidences no COPD changes. Bronchiectasis was not mentioned. A February 2012 VA respiratory compensation examination report contains additional conflicting information that cannot be reconciled without further clarification. According to the report, at page 1, the Veteran has or had the following diagnoses: asthma; emphysema; COPD; and chronic bronchitis. The diagnosis for each was offered between 1990 and 1992. At page 4, the examiner reported that the respiratory condition requires treatment with antibiotics. Confusingly, at page 15, the examiner checked "NO" to the question: Does the Veteran have multiple respiratory conditions? At page 14 of the report, the February 2012 examiner noted that a pulmonary function test was performed and that the FEV-1 (forced expiratory volume in one second) (see 38 C.F.R. § 4.96 (d) (6)) predicted percentage represented the most accurate level of disability. The FEV-1 values were 69 percent predicted (pre-bronchodilator) and 87 percent predicted (post-bronchodilator). According to 38 C.F.R. § 4.97, Diagnostic Code 6845, an FEV-1 value of 69 percent of predicted value warrants a 30 percent rating, whereas 87 percent of predicted value warrants a noncompensable rating. This becomes relevant below. The February 2012 VA examiner concluded that it is unlikely that a claimed lung condition was caused by a claimed in-service injury, event, or illness. The rationale was that the pulmonary examination was normal. The conclusion is also based on the 1973 military examination report, which showed normal lungs and that the Veteran had stated that he was in good health. Because: (1) the February 2012 VA examiner reported that asthma; emphysema; COPD; and chronic bronchitis were shown; (2) the Veteran requires the use of antibiotics for his lungs; (3) pulmonary function test results indicate that a current respiratory disability could potentially be rated 30 percent disabling; and, (4) an earlier diagnosis offered during the appeal period was idiopathic pulmonary fibrosis, the Board cannot understand why the examiner concluded that the lungs are normal. Clarification is therefore required. Acquired Psychiatric Disability The Veteran claims that depression or other acquired psychiatric disability was caused by medical conditions, namely, his respiratory disability. Because service connection for a respiratory disability is pending, it would be premature at this time to adjudicate the secondary service connection claim. In Harris v. Derwinski, 1 Vet. App. 180 (1991), and Hoyer v. Derwinski, 1 Vet. App. 208 (1991), the Court dismissed as premature BVA decisions on a claim that was "inextricably intertwined" with another claim which was undecided and pending before VA. Thus, the secondary service connection claim must be remanded for re-adjudication. Accordingly, the case is REMANDED for the following action: 1. The AMC should make arrangements for an addendum report by the February 2012 examining respiratory diseases physician. The claims file and any additional pertinent medical evidence available in Virtual VA should be made available to the physician for review. The physician is to assume that the Veteran was exposed to asbestos fibers during active military service. The physician is asked to review the claims file, note that review in the report, and then address the following questions: I. Reconcile the report of diagnoses of asthma, emphysema, COPD and chronic bronchitis, on page 1 of the February 2012 VA respiratory examination report, with the response of "No" on page 15 of this examination report to the question: Does the Veteran have multiple respiratory conditions? II. Is it at least as likely as not (50 percent or greater possibility) that any respiratory disability shown during the appeal period, to include, asthma; emphysema; COPD; chronic bronchitis, or idiopathic pulmonary fibrosis, is related to active service, to include asbestos exposure? The physician should offer a rationale for any conclusion in a legible report. The Veteran may be re-examined if necessary. II. If additional examination of the Veteran is deemed necessary to provide the requested opinions, such examination should be scheduled. If the February 2012 VA examiner is unavailable, then the Veteran's electronic and paper hard copy records should be forwarded to an appropriate substitute clinician to provide the requested responses. 2. After the development requested above has been completed to the extent possible, the AMC should re-adjudicate the claim for service connection for a respiratory disorder and secondary service connection for an acquired psychiatric disorder. If any benefits sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given an opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. No action by the Veteran is required until he receives further notice; however, the Veteran is advised that failure to report for examination, without good cause, if an examination is scheduled, may have adverse consequences on his claims. 38 C.F.R. § 3.655 (2013). The Veteran has the right to submit additional evidence and argument on the 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 that are remanded by the Board or by the Court 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). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs