Citation Nr: 1334424 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 08-30 045 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a lung disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) from a September 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied entitlement to service connection for a lung disability. In May 2010, the Veteran testified before the Board at a hearing held at the RO. In November 2010, the Board denied the Veteran's claim. The Veteran filed a timely appeal of the decision to the United States Court of Appeals for Veterans Claims, and pursuant to a Memorandum Opinion, a March 2012 Order vacated the Board's decision and remanded the matter for compliance with the instructions in the Memorandum Opinion. In April 2013, the Board remanded the claim for additional development. FINDING OF FACT A lung disability is not shown to be causally or etiologically related to any disease, injury, or incident in service and is not due to herbicide exposure in service. CONCLUSION OF LAW A lung disability was not incurred in or aggravated by the Veteran's active duty military service, nor may it be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice 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; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a) , must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on the claim for VA benefits. The Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a May 2006 letter, sent prior to the initial unfavorable decision issued in September 2006, advised the Veteran of the evidence and information necessary to substantiate his service connection claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, the letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment and personnel records as well as post-service VA and private treatment records have been obtained and considered, most recently on April 2013 remand, more recent VA treatment records were obtained. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Board has reviewed the VBMS claims file and Virtual VA claims file, and notes no additional records. The duty to assist also provides that VA will afford a claimant a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. In this case, the Veteran was afforded a VA examination in May 2013 which addressed the etiology of the Veteran's lung disability. The Board finds that the examination report is adequate as the examiner had knowledge of the relevant facts in regards to the Veteran's military and post-service medical history, and the medical conclusion is supported with data and a rationale. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran was also provided with a hearing related to his present claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the VLJ explained the issues on appeal, and asked questions regarding the facts of the case, as they relate to the specific elements necessary to substantiate the service connection claim. The VLJ and representative inquired as to additional evidence. Accordingly, the Veteran is not shown to be prejudiced on this basis. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board notes that the claim was previously remanded in order to obtain VA treatment records and a VA examination. There has been substantial compliance with those directives, as both directives have been accomplished. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis The Veteran contends that his current lung condition is related to dust and environmental hazards he inhaled while in service. Specifically, he contends that he was exposed to dust mixed with fuel in Vietnam everyday for a year as part of his duties of refueling helicopters when stationed with an assault helicopter company. He contends that a few years after separating from service, he began coughing up blood. He also began smoking following service separation. His post-service occupation was that of fencing and he was not exposed to environmental toxins in that position. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may be granted with evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or evidence of continuity of symptomatology. If the disability claimed is not considered to be a chronic disease under 38 C.F.R. § 3.307, credible lay evidence of continuous symptoms may establish service connection. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as malignant tumors, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. VA regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). For purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii), the serviceman must have actually been present on the landmass or the inland waters of Vietnam during the Vietnam era. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). Certain diseases shall be service-connected if the Veteran was exposed to an herbicide agent during active service even though there is no record of such disease during service, provided that the requirements of 38 C.F.R. § 3.307(d) are satisfied. 38 C.F.R. § 3.309(e). The Veteran's DD-214 form reflects that he served in Vietnam during the Vietnam War. The Veteran was present on the landmass or the inland waters of Vietnam during service. Thus, the Veteran will be afforded the herbicide presumption. However, only those diseases associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e) (2012) will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. This includes respiratory cancers, (cancer of the lung, bronchus, larynx, or trachea), if manifest to a compensable degree at any time after service. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2012). In this case, however, the Veteran has not been diagnosed with a lung disability listed under 38 C.F.R. § 3.309(e), and therefore service connection for a lung condition on a presumptive basis is not warranted. Having determined that the Veteran is not entitled to presumptive service connection, the Board must now evaluate whether the Veteran is entitled to service connection on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 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. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's service treatment records are negative for any complaints, diagnosis, or treatment for any lung disorders. Post-service treatment records reflect that in January 2001, a chest x-ray showed several one to three millimeter nodules in the Veteran's right upper lobe of his lung. An August 2001 CTscan revealed a seven millimeter nodular density in the right upper lobe and a slight increase in opacity overlying the left mid lung field. The impression was hemoptysis and right upper lobe nodule. It was noted that it was virtually impossible to predict if the seven millimeter nodule was suspicious for malignancy, especially with a nodule with smooth edges. On August 2001 Agent Orange examination, the Veteran reported a cough for over one year that was productive and blood tinged and was accompanied by shortness of breath. He had quit heavy smoking in November 2000. The physician stated that it was as likely as not that the Veteran's hemoptysis with pulmonary nodule was caused by exposure to Agent Orange. An October 2001 addendum to the examination noted that the results of a barium swallow had been benign. However, bronchoscopy had revealed diffuse tracheobronchitis of possible viral etiology. The physician stated that the Veteran's diffuse tracheobronchitis was as likely as not caused by exposure to Agent Orange. VA treatment records reflect that in July 2002, the Veteran had a productive cough with scant hemoptysis. CTscan revealed that the right upper lung nodule was stable in size but remained indeterminate. There was a new four millimeter left lung peripheral node. It was advised that further examination be completed in two years. A March 2006 CTscan of the lungs was stable and similar to CTscans dating back to 2001. The greater than two year's stability range was interpreted to suggest benignity. In March 2008, the Veteran reported a continuing productive cough with clear secretions. A March 2013 letter from the Veteran's VA physician stated that the Veteran had persistent nodular opacity in the right upper lobe that had increased modestly since August 2007. On May 2013 VA examination, it was noted that in 2001, the Veteran was found to have a nodule in his right upper lobe of his lung. A 2002 bronchoscopy showed blood in the left nostril, diffuse tracheobronchitis, but no endobronchial lesions. The lung nodule had been followed on serial chest x-rays and CTscans. The Veteran had been seen by his primary physician and pulmonary specialists at the VA, with a recent April 2013 pulmonary note that showed the right lung nodule had characteristics of a benign lung nodule, suspected enlarging hemartoma. The Veteran reported some gradual development of dyspnea on exertion. He used to walk three miles a day but now walked one mile. The examiner stated that the tracheobronchitis found on bronchoscopy 11 years previously was no longer an active diagnosis. After physically examining the Veteran and reviewing the claims file, the examiner concluded that it was less likely than not that the Veteran's current lung disability, right lung nodule, was caused or aggravated by his service. The examiner reviewed and considered the lay contentions of record but found them to lack in diagnostic value. The examiner explained that although the exact etiology of the lung nodule could not be confirmed without a biopsy and tissue examination, the most recent specialists feel that the pulmonary hemartoma is likely. A hemartoma was a noncancerous growth commonly found in middle-aged patients with no known cause. The examiner could find no scientific study to show that pulmonary hemartomas were caused or aggravated by breathing in dust in fuel in Vietnam or due to herbicide exposure. The Board first notes that there has been no diagnosis of tracheobronchitis at anytime during the appeal period, nor has the Veteran displayed symptoms or residuals that any physician has related to a possible diagnosis of tracheobronchitis at anytime during the appeal period. Rather, the only diagnosis of tracheobronchitis was in 2001; however, the Veteran filed a claim for service connection in 2006. Thus, there is no objective evidence of record showing that the Veteran currently has tracheobronchitis, as noted by the 2013 VA examiner. See Mclain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, despite the August 2001 VA examiner's opinion that the Veteran's tracheobronchitis was related to service, because there is no evidence that the Veteran has suffered from that disability, or symptoms or residuals thereof at anytime during the appeal period, that opinion cannot substantiate the claim. With regard to the Veteran's right lung nodule, the Board finds that service connection is not warranted on a presumptive basis because the Veteran's lung nodule has not been shown to be malignant. Accordingly, the evidence demonstrates that service connection based upon the presumptive conditions listed in 38 C.F.R. § 3.309 is not warranted. Next, the Board finds that the weight of the credible evidence is against the Veteran's claim. In so finding, the Board places the greatest probative weight on the 2013 VA opinion that it is less likely than not that the Veteran's right lung nodule was caused or aggravated by his service. For one, the examiner provided a sufficient rationale for that finding, namely, that there was no scientific evidence to relate the Veteran's condition, a hemartoma, with the exposure to dust and fuel in service, or to the exposure of herbicides in service. Moreover, the examiner based that conclusion on a thorough review of the Veteran's record, including the Veteran's lay testimony. The Board finds that the 2013 opinion outweighs the 2001 Agent Orange opinion that the Veteran's hemoptysis with pulmonary nodule was caused by exposure to Agent Orange, because that opinion was accompanied by no medical rationale. A medical examination report must contain not only clear conclusions, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. This opinion is therefore afforded no probative weight. There are no other positive medical opinions in the record to substantiate the Veteran's claim. The Board notes that the Veteran has contended on his own behalf that his lung disability is related to his service, to include his in-service exposure to dust and fumes and/or herbicide exposure. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's recurrent lung disability and any instance of his service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Additionally, in a single-judge Memorandum Decision issued by the Court, it was noted that "in the absence of any medical evidence, the record must provide some evidence beyond an appellant's own conclusory statements regarding causation to establish that the appellant suffered from an event, injury or disease in service." Richardson v. Shinseki, No. 08-0357, slip. op. at 4 (Vet. App. May 10, 2010). While the Board recognizes that such single judge decisions carry no precedential weight, they may be relied upon for any persuasiveness or reasoning they contain. See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992). Here, while the Veteran is competent to describe his breathing difficulties and exposure to fumes and dust during service, as well as the current manifestations of a lung disability, the Board accords his statements regarding the etiology of such disorder little probative value as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Specifically, the diagnosis and determination of etiology of a right lung nodule requires the interpretation of results found on physical examination, x-ray, and CTscans, and knowledge of the respiratory system. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. Moreover, the Veteran has offered only conclusory statements regarding the relationship between his in-service exposure to fumes and dust and herbicide exposure and his current lung disability. In contrast, the 2013 VA examiner took into consideration all the relevant facts in providing an opinion, to include the Veteran's contended in-service symptoms and his presumed exposure to herbicides as well as the current nature of his lung disability. Therefore, the Board accords greater probative weight to the 2013 VA examiner's opinion. In so doing, the Board notes that there is also an approximately 35 year gap in treatment for a respiratory disorder since service and the 2001 finding of a lung nodule. This gap in time is one factor that can weight against a claim, and lessen the Veteran's credibility, despite his contentions otherwise. Accordingly, when weighing the evidence in this case, the Board affords the greatest weight to the 2013 VA opinion stating that it is less likely than not that the Veteran's lung nodule was caused or aggravated by service, rather than on the 2001 VA opinion and the Veteran's statements, for the reasons described above, and thus service connection is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a lung disability. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a lung disability is denied. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs