Citation Nr: 1338353 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 06-00 766 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for bronchiectasis to include for accrued benefit purposes. 2. Entitlement to service connection for the cause of death of the Veteran. REPRESENTATION Appellant represented by: Robert A. Laughlin, Attorney at Law WITNESSES AT HEARINGS ON APPEAL Appellant, the Veteran and their son ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from July 1942 to December 1945. The appellant is the Veteran's surviving spouse. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, that denied the Veteran's claim for service connection for bronchiectasis. In January 2008, the Veteran appeared at a hearing before a Veterans Law Judge. A transcript of the hearing is contained in the claims file. In October 2008, 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 (Court). In Memorandum Decision dated in August 2011, the Court vacated the Board's decision and remanded the matter for compliance with the instructions in the Memorandum Decision. While the case was before the Court, the Court granted a motion to substitute the appellant for the Veteran for the purposes of this appeal. Meanwhile, in September 2010, the appellant filed a claim for service connection for the cause of the Veteran's death and for accrued benefits with the RO. That claim was denied in December 2010 and the appellant filed a timely appeal. In April 2012, the Board remanded this case for additional evidentiary development. At that time, the Board observed that the claim for accrued benefits was in essence the same as the claim for service connection for bronchiectasis remanded by the Court, the two claims have been merged together as stated on the title page. In November 2012, the appellant testified before another Veterans Law Judge. A transcript of the hearing is contained in the claims file. At the time of the hearing, the appellant's attorney waived any procedural right to a hearing before a third Veterans Law Judge. See Arneson v. Shinseki, 24 Vet. App. 379, 386 (2012) (§20.707 requires VA to afford a claimant the opportunity for a hearing before all the Board members who will ultimately decide his appeal). Because there has been testimony before two Veterans Law Judges regarding this matter, and each must participate in this decision, this decision is being rendered by a panel of three Veterans Law Judges. 38 U.S.C.A. § 7102, 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). In February 2013, the Board again remanded these issues for additional development. The requested development has been completed and the case has been returned to the Board for further appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002). FINDINGS OF FACT 1. There is at least an approximate balance of positive and negative evidence as to whether the claimed bronchiectasis was related to service. 2. The Veteran's death certificate shows that he died in October 2009 of pneumonia that was due to a consequence of bronchiectasis. 3. At the time of the Veteran's death, service-connection had been established for recurrent headaches from cervical disc disease; a cervical neck strain; radicular pain, left arm and shoulder; radicular pain; right arm and shoulder; tinnitus; and bilateral hearing loss and a claim for entitlement to service connection for bronchiectasis was pending. 4. The evidence of record reasonably shows that the cause of the Veteran's death was related to his service-connected disabilities. CONCLUSIONS OF LAW 1. Service connection for bronchiectasis is established. 38 U.S.C.A. §§ 1110, 5107, 5121 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309, 3.1000 (2012). 2. A disability incurred or aggravated in active service caused or substantially or materially contributed to the Veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1310, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the Veteran's Claims Assistance Act of 2000, VA has certain duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Nevertheless, given the favorable disposition of the claims for service connection for bronchiectasis and for service connection for the cause of the death of the Veteran; the Board finds that all notification and development actions needed to fairly adjudicate these claims has been accomplished. Analysis The Veteran's service treatment records include a July 1942 entrance examination report which reflects that his history of illness or injury included pneumonia. He had a normal clinical evaluation of the respiratory system and no defects were noted at that time of his entrance examination. In September 1942 he was treated for routine catarrhal fever, manifested by symptoms of a head cold. He was treated for a septic sore throat in January 1943. Upon examination for release to inactive duty in November 1945 and for honorable discharge by reason of expiration of enlistment in December 1945, examination of the respiratory system, bronchi, lungs, pleura was normal. Chest x-ray showed no abnormal findings. Only a vision defect was noted. The Veteran died in October 2009 from, according to his Certificate of Death, an immediate cause of death was pneumonia due to his bronchiectasis. Thus, the determinative question is this appeal is whether the Veteran's bronchiectasis was etiologically related to his active military service. The appellant argues that the Veteran developed bronchiectasis due to his 18 months aboard a naval ship in an enclosed environment where he was exposed to toxic and diesel fumes. The Veteran asserted that the construction of the ship, in particular the ship's living quarters, did not provide ventilation or portholes, thereby exposing him to numerous noxious gases, dust, and debris. It has also been suggested that his symptoms of hacking cough and sputum in and since service are early clinical manifestation of later diagnosed bronchiectasis. Service Connection The evidence reflects that, the Board denied the Veteran's claim for service connection for bronchiectasis in October 2008. The Veteran filed a timely appeal of the decision to the Court. The Veteran then died in October 2009. Under law, his claim was extinguished with his death. However, while the case was before the Court, the Court granted a motion to substitute the appellant for the Veteran for the purposes of this appeal. Service connection will be granted if the evidence demonstrates that 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). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as bronchiectasis is through a demonstration of continuity of symptomatology. Bronchiectasis is included among the chronic diseases under 38 U.S.C.A. §1101 and 38 C.F.R. § 3.309(a). Certain diseases, to include bronchiectasis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §] 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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) In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted at entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1111. To rebut the presumption of sound condition upon entry into service under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d. 1089 (Fed. Cir. 2004). To satisfy the second requirement for rebutting the presumption of soundness, the government must show, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258 (1999) (citing the definition of "clear and unmistakable error" in Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)). The clear and unmistakable evidence standard is an "onerous" one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)). The clear and unmistakable evidentiary standard applies to the burden to rebut the presumption, but this standard does not require the absence of conflicting evidence. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Taking into account all relevant evidence, the Board finds that service connection is warranted for bronchiectasis. The appellant claims that the Veteran did not have a pulmonary disorder prior to enlistment, to include pneumonia, and that his bronchiectasis (which has been diagnosed as due to his history of pulmonary impairment) is the result of being onboard ship and being exposed to diesel fuel and dust. Notably, while the Veteran's July 1942 entrance examination reflected a normal clinical evaluation of the respiratory system with no defects noted, the examination also noted that the Veteran had a history of illness or injury which included pneumonia. While a private treatment note in March 1995 also indicated that the Veteran reported that "he had continuous pulmonary infections as a child," in a May 2011 letter, the Veteran's private internist noted that to the best of his knowledge, the Veteran had not been diagnosed with bronchiectasis prior to his induction to the service although there are some reports of pneumonia prior to service. In May 2012, the VA examiner opined that given the Veteran's history as related by him following his service period and alluded to with the history of pneumonia as a child in his service record, it was at least as likely as not that the Veteran may have bronchiectasis prior to his entry into service. The examiner indicated that this was the conclusion even though the Veteran's induction examination stated that his thorax and respiratory system were normal and a chest x-ray was read as negative. However, the examiner also noted that as there was no mention of bronchiectasis or recurrent pneumonia on his August 1942 entrance examination and his service records did not document the frequent infections and pneumonias that would be manifest if bronchiectasis was present during the service period, the record suggests that there was unclear evidence as to whether the Veteran had a preexisting condition of bronchiectasis. As the Veteran's July 1942 entrance examination reflected a normal clinical evaluation of the respiratory system with no defects noted, and the Veteran's private internist noted in a May 2011 that to the best of his knowledge, the Veteran had not been diagnosed with bronchiectasis prior to his induction to the service, the Board concludes that the presumption of soundness attaches. There is no clear and unmistakable evidence that the Veteran had a pre-existing pulmonary impairment when entering into military service in July 1942. As the claim is now essentially one for service connection, the Board initially notes that the Veteran's exposure to diesel fumes in service is conceded as the Veteran submitted evidence to show and the Department of the Navy confirmed that, the ship on which the Veteran served on for 18 months was subsequently modified with additional ventilating portholes due to post-war ventilation concerns. As a result of this conceded exposure, the determination as to whether the Veteran's bronchiectasis was etiologically related to his active military service will turn on the conflicting medical opinions of record addressing the possibility of such a relationship. The Board acknowledges that there are conflicting opinions regarding the determinative issue of whether the Veteran's bronchiectasis was etiologically related to his active military service. In May 2006, a private physician who had treated the Veteran for his pulmonary symptoms, noted that the Veteran and his crewmates experienced continuous inhalation of diesel fumes because of the construction of the ship and concluded that it is more likely than not that this exposure created the Veteran's underlying diagnosis of bronchiectasis and recurrent pulmonary infections. Similarly, a December 2007 statement from the Veteran's internist noted that the Veteran's bronchiectasis and associated recurrent pneumonia had been present since the Veteran was a young man after he served in World War II aboard Navy ships. The private internist indicated that the Veteran's pulmonary conditions were related to his exposure during his service time in World War II aboard the naval ship. In a May 2011 letter the Veteran's internist also noted that the now deceased Veteran suffered from bronchiectasis, recurrent pneumonia and respiratory failure which eventually led to his death and that the Veteran's exposure to fumes and toxins while in service induced his final diagnosis of bronchiectasis. Submitted journal/treatise evidence submitted by the appellant's attorney reported that work in jobs with diesel exhaust was associated with increased mortality from COPD; that occupational exposure to diesel exhaust, irritant gases and vapors, and mineral dust were positively associated with COPD among both ever-smokers and never-smokers; and that a retrospective observational study of 100 patients with bronchiectasis reported a link between the disease and significant exposure to indoor air pollution from biomass smoke. Finally, in an October 2012 letter, the Veteran's private pulmonologist opined that it was at least as likely as not that the Veteran's bronchiectasis was caused his service on the ship where he was exposed to diesel and ship fumes. He also indicated that smoking and pipe and cigarettes did not have an effect on his development of bronchiectasis. The pulmonologist also opined that the Veteran did not have a preexisting pulmonary condition of childhood pneumonia that caused him to develop bronchiectasis in his adult years. Conversely, the VA examiner who conducted examinations in December 2005and July 2011as well as VA addendum opinions in May 2012 and April 2013, determined that it was not at least as likely as not that the Veteran's bronchiectasis was casually related to any incident of service and his bronchiectasis was less likely than not caused by or a result of his diesel exposure during service. The Board notes that both the positive nexus opinions and negative nexus opinions appear to have an accurate picture of the Veteran's disability and history. Additionally, both the positive nexus opinions and negative nexus opinions provided a rationale for the conclusions offered, which also included the submission and review of treatises related to diesel fume exposure. Consequently, the Board finds that there is an approximate balance of positive and negative evidence regarding the question of whether the Veteran's bronchiectasis was etiologically related to his active military service. In sum, for the reasons and bases discussed above, the Board has resolved doubt in favor of the Veteran, and service connection for bronchiectasis is granted. See 38 U.S.C.A. § 5107(b). Cause of Death To establish service connection for the cause of death, the evidence must show that a disability that was incurred in or aggravated by service, or which was proximately due to or the result of a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be the principal cause of death, it must singularly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. 38 C.F.R. § 3.312(b). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c) (2) (3). Based on the above, the Board finds that the Veteran's bronchiectasis, which was an underlying cause of his death, was at least as likely as not caused by the Veteran's diesel fuel exposure in service. Accordingly, as the evidence shows that the fatal disease was incurred in or aggravated by service or that a service-connected disability was the underlying cause of death, entitlement to service connection for the cause of the Veteran's death is granted. ORDER Entitlement to service connection for bronchiectasis is granted. Entitlement to service connection for the cause of the Veteran's death is granted. _______________________________ ______________________________ C. TRUEBA DAVID L. WIGHT Veterans Law Judge, Veterans Law Judge, Board of Veterans' Appeals Board of Veterans' Appeals __________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs