Citation Nr: 1335890 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-26 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a respiratory disorder, to include pneumothorax, to include as due to an undiagnosed illness. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1989 to June 1993. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which in part denied service connection for pneumothorax claimed as breathing/lung problems. In December 2012, the Board remanded this matter for further development, and the case has been returned to the Board for appellate consideration. The issue of service connection for posttraumatic stress disorder (PTSD) was also appealed and was the subject of the December 2012 remand. However, during the pendency of this appeal in a February 2013 rating decision, the Appeals Management Center (AMC) granted service connection for depressive disorder, with marital dysfunction or partner relational disorder (previously claim as PTSD), and assigned a 10 percent rating evaluation effective July 2009 and a 30 percent rating evaluation effective January 2013. As this represents a grant of benefits sought as to the claim for service connection and the Veteran has not disagreed with the effective date or disability evaluation assigned, this issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). The Veteran's representative also stated in the June 2013 Information Hearing Presentation that the issue of service connection for respiratory disorder is the only issue pending on appeal, as the Veteran was granted service connection for depressive disorder (previously claimed as PTSD). Therefore that issue has been resolved to satisfaction. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board has considered the records contained in the electronic claims file and the paper claims folder in adjudicating this decision. FINDINGS OF FACT 1. There was no competent evidence of a diagnosis of pneumothorax during the pendency of the appeal. 2. A respiratory disorder was not shown to have become manifest in service or to be related to service, to include service in the Persian Gulf. CONCLUSION OF LAW A respiratory disorder, to include pneumothorax, to include as due to an undiagnosed illness, was not incurred in or aggravated by active duty military service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112, 1117, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Stegall Considerations As noted above, the Board remanded this matter in December 2012. The Board specifically instructed the RO/AMC to obtain outstanding pertinent medical records, provide the Veteran with an examination, and to readjudicate his claim. Pursuant to the Board's remand, outstanding VA treatment records were associated with the Veteran's electronic file, he was afforded an examination in January 2013, and his claim was readjudicated in the February and March 2013 supplemental statements of the case. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Assist and Notify In correspondence dated July 2009, prior to the October 2009 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The claim was subsequently readjudicated in February and March 2013 supplemental statements of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (noting that VA cured its failure to afford statutory notice to the claimant prior to an initial rating decision by issuing a notification letter after the decision, readjudicating the claim, and notifying the claimant of such readjudication in the statement of the case). The United States Court of Veterans Appeals (Court) has addressed the meaning of prejudicial error (38 U.S.C.A. § 7261(b)) and what burden each party bears with regard to the Court's taking due account of the rule of prejudicial error. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Board observes that neither the February SSOC nor the March 2013 SSOC included citation to 38 C.F.R. § 3.317, the pertinent regulation regarding service connection for compensation for certain disabilities occurring in Persian Gulf veterans. The absence of a specific citation to 38 C.F.R. § 3.317 in the SSOC, in this case, however, is harmless error. The February and March 2013 SSOCs stated that in order to establish service connection for the claimed disorder, there had to be: an injury in military service or a disease that began in or was made worse during military service or an event in service causing injury or disease; a current disability; and a relationship between the current disability and an injury, disease, or event in military service. As will be shown below, the Veteran also does not have any undiagnosed illnesses, so presumptions related to the Gulf War are not applicable in this instance. The Veteran has been represented by an accredited representative during his appeal and has clearly had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication is not affected. See Overton v. Nicholson, 20 Vet. App 427, 438 (2006). The absence of specific citation to 38 C.F.R. § 3.317 in an SOC or SSOC, in this case, is harmless error, and remand for issuance of a new SSOC is not warranted. VA has done everything reasonably possible to assist the Veteran with respect to the issue decided herein in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured. As the Board will discuss in detail in the analysis below, the Veteran was provided a VA examination in January 2013. The report of this examination reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate interview examination, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2013). The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2013). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. Therefore, the duties to notify and assist have been met. Analysis The Veteran essentially contends that he incurred pneumothorax as a result of environmental hazard exposure due to a sand scud missile during service in the Persian Gulf War. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. §§ 1110; 1131 38 C.F.R. § 3.303 (2013). Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2013). Because the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War, which is established by his Combat Infantryman Badge, service connection may also be established under 38 C.F.R. § 3.317. Service connection may be established for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016. 38 U.S.C.A. § 1117(a)(1) (West 2002); 38 C.F.R. § 3.317(a)(1) (2013). A "qualifying chronic disability" includes: (A) an undiagnosed illness; (B) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. 38 C.F.R. § 3.317(a)(2)(i) (2013). Among the requirements for service connection for a disability due to an undiagnosed illness is that such disability, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii) (2013). There must be no affirmative evidence that relates the undiagnosed illness to a cause other than being in the Southwest Asia Theater of operations during the Persian Gulf War. See 38 C.F.R. § 3.317(c) (2013). If signs or symptoms have been attributed to a known clinical diagnosis in the particular veteran's case being considered, service connection may not be provided under the specific provisions pertaining to Persian Gulf veterans. See VAOPGCPREC 8-98 at paragraphs 4-5 (Aug. 3, 1998). In June 2009, the Veteran was diagnosed with a collapsed lung. He reported a history of chest pain and shortness of breath. The first x-ray showed that there was a large right-sided pneumothorax with most of the lung collapsed along the right mediastinum. The inspiration film showed the heart appeared midline. On the expiration film the heart was shifted to the left. The examiner could not exclude the tension component of the pneumothorax. The left lung was clear. No effusion was seen. The impression was large right side pneumothorax. A chest x-ray later that same day showed that compared to the earlier exam the right lung was re-expanded. The examiner did not see pneumothorax. The x-ray showed that a small caliber right side chest tube overlayed the right diaphragm with tip medial. The lungs were clear except for some minor atelectatic changes in the right mid chest. The trachea was midline and the heart showed mild left ventricular configuration probably exaggerated by hypoventilation. The impression was of re-expansion of the right-lung with no detectable pneumothorax. A chest x-ray the following day noted a history of chest tube placement. Bones were unremarkable. The trachea was midline and heart size normal. The lungs were clear and there was no recurrent pneumothorax seen on the right lung. The follow-up x-ray showed a right chest tube over diaphragm with no pneumothorax. In July 2009, the Veteran filed his claim for service connection for a respiratory disorder. The Veteran reported in a September 2009 VA examination that he had spontaneous pneumothorax in June 2008, and had received a chest tube insertion. The lung auscultation and lung percussion were clear. The thorax and chest were normal. The Veteran received a chest x-ray in which the cardiac, mediastinal, and hilar shadows appeared normal. The examiner noted that the lungs were well-aerated with no signs of acute infiltrate or focal consolidation. No pleural fluid was identified. The visualized osseous structures were unremarkable. The impression was of no acute cardiopulmonary abnormality. The diagnosis was normal. The Veteran was afforded a VA examination in January 2013. The report noted a previous diagnosis of spontaneous pneumothorax in 2009. The examiner reviewed the claims file and CPRS. He noted that the Veteran had not had pneumothorax since 2009. He noted the Veteran did not require the use of inhaled medications, bronchodilators, or oxygen therapy. A chest x-ray showed an unremarkable and unchanged exam. A pulmonary functioning test was not performed because there was no diagnosed respiratory condition. There were no other significant diagnostic test findings. The examiner opined that it was less likely than not that the claimed condition occurred in or was caused by an in-service injury. He noted that there was no current diagnosis of pneumothorax since the September 2009 x-ray and the right pneumothorax had been acute and resolved without any residuals. The current exam and chest x-ray was normal. Compared to the September 2009 chest x-ray no abnormality of the lungs, pleura, or cadiomediastinum was identified. A very slight thoracic curve the right was seen. The impression was of an unremarkable and unchanged examination. The evidence does not show any diagnosis of pneumothorax following the filing of the claim in July 2009. Notably, the September 2009 VA examination report and January 2013 VA examination report showed that physical evaluation of the lungs was normal. After considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for an undiagnosed illness, because there were no symptoms that could be attributed to a undiagnosed illness or medically unexplained chronic multisymptom illness. In fact there were no symptoms at all during the pendency of the claim. The Veteran's January 2013 x-ray was normal and unremarkable and he did not require the use of any inhaled medications, bronchodilators, or oxygen therapy. There is no evidence of record indicating the presence of an undiagnosed illness due to the Veteran's Gulf War service. Although service connection under the provisions of 38 C.F.R. § 3.317 is not warranted in this case, the Veteran is not precluded from establishing service connection for a disease averred to be related to service, as long as there is proof of such direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, there is no evidence of pneumothorax, or any other respiratory disorder, at any time during the pendency of the appeal. The Veteran has not been shown to have a current disorder for which service connection can be granted. Therefore, service connection for a respiratory disorder is not warranted. In relevant part, 38 U.S.C.A. 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding that "the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Board notes that the Veteran, while entirely competent to report any symptoms, has presented no clinical evidence of a respiratory disorder during the pendency of the appeal. The Board finds that the Veteran as a lay person is not competent to diagnosis pneumothorax. Such an opinion requires specific medical training and is beyond the competency of the Veteran or any other lay person. In the absence of evidence indicating that the Veteran has the medical training to render medical diagnoses and/or opinions, the Board must find that his contention with regard to a diagnosis of pneumothorax to be of no probative value. See also 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Accordingly, the statements offered by the Veteran in support of his own claim are not competent evidence of having a current diagnosis of pneumothorax. In contrast, the Board finds the VA opinions to be highly probative and carry significant weight as they were definitive, based upon a complete review of the Veteran's entire claims file, evaluation and interview of the Veteran, and the examiners provided detailed rationales for the conclusions reached. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). For the sake of completeness, the Board will also briefly address Hickson elements (2) medical or lay evidence of in-service incurrence or aggravation of a disease or injury and (3) medical nexus. See Luallen v. Brown, 8 Vet. App. 92, 95-96 (1995), citing Holbrook v. Brown, 8 Vet. App. 91, 92 (1995) (finding that the Board has the fundamental authority to decide in the alternative). Service treatment records are completely negative for any findings or complaints of pneumothorax. Indeed, the Veteran has not indicated that he had pneumothorax or lung problems during service or even that he experienced symptoms thereof. Therefore, Hickson element (2) would not be met. With respect to Hickson element (3), medical nexus, in the absence of a current disability and evidence of in-service incurrence or aggravation of a disease or injury, a medical nexus opinion would seem to be an impossibility. Accordingly, Hickson element (3) is not met, and the claim would fail on this basis as well. The Veteran has been accorded ample opportunity to present competent evidence in support of his claim. He has failed to do so. See 38 U.S.C.A. § 5107(a) (2013). As noted above, the Court has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, [s]he cannot passively wait for it in those circumstances where [s]he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 92 (1991). In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the weight of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). ORDER Service connection for a respiratory disorder, to include pneumothorax, to include as due to an undiagnosed illness, is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs