Citation Nr: 1339175 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 08-04 109 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a pulmonary disorder. 2. Entitlement to service connection for bilateral hip disability status post-bilateral hip replacement. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to September 1969 and from January 1991 to March 1991. He also served in the Reserve Component, during which he had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In his substantive appeal, received in January 2008, the Veteran requested a hearing before a Veterans Law Judge at the RO. A Travel Board hearing was duly scheduled in August 2009, but was cancelled at the Veteran's request. The Veteran has not requested that the hearing be rescheduled. His request for a hearing before the Board is accordingly deemed to be withdrawn. See 38 C.F.R. § 20.704(e) (2013). In December 2011 the Board remanded the claims to the RO for further development, which has been accomplished. Stegall v. West, 11 Vet. App. 268 (1998). The issue of service connection for a bilateral hip disorder is REMANDED to the RO via the Appeals Management Center (AMC). VA will notify the Veteran if further action is required on his part. FINDING OF FACT The most probative evidence indicates the Veteran does not have a pulmonary disorder that is related to service. CONCLUSION OF LAW The requirements for establishing service connection for a pulmonary disorder are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Before addressing the merits of the claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). VCAA notice was provided in August 2005 and 2006 letters. The Veteran has not identified any prejudice due to error in the content or timing of the notice provided. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The claim was last readjudicated in September 2012. The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. Service treatment records (STRs) relating to the Veteran's periods of active service have been obtained. The RO has obtained post-service VA and private treatment records from providers identified by the Veteran. The Veteran has also been afforded a VA examination. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the issue on appeal. Service Connection for Pulmonary Disorder The Veteran essentially contends that he had pneumonia that was incurred during Army Reserve training at Fort Bragg, North Carolina in January 1992, and that he has had chronic residuals since then. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Active service includes any period of active duty for training (ACDUTRA) during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training during which the veteran was disabled from an injury incurred in the line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Inactive duty training includes duty prescribed for the Reserves. 38 U.S.C.A. § 101(23)(A). Reserves includes the National Guard of the United States. 38 U.S.C.A. § 101(26), (27). Duty, other than full-time duty, performed by a member of the National Guard of any State, is considered to be inactive duty training. 38 C.F.R. § 3.6(d)(4). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA 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). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board has reviewed all the evidence in the record. 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 appellant 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). Service treatment records (STRs) are silent in regard to any chronic pulmonary disorder having been manifested during the Veteran's first period of active service duty from September 1967 to September 1969, or during his second period of active service from January 1991 to March 1991. Of note, in his self-reported Report of Medical History, executed in conjunction with his separation examination in March 1991, the Veteran denied history of any respiratory symptoms but reported that his usual occupation was industrial spray painter. Clinical evaluation of the lungs and chest on that occasion was "normal." Army Reserve personnel records show the Veteran was placed on ACDUTRA orders for a two-day period beginning January 11, 1992, plus travel time, to attend the Primary Leadership Development Course (PLDC), Phase I. Thus, per the terms of the order, the Veteran should have been home by January 13, 1992. Treatment records from Person County Memorial Hospital show the Veteran presented to the emergency room (ER) on January 23, 1992, complaining of a history of shortness of breath, weakness and exhaustion self-diagnosed as "flu." The Veteran stated that symptoms had begun several weeks earlier, but he had continued to push himself very hard and his symptoms had become more severe. Initial evaluation in the ER showed significantly decreased breath sounds in the right chest wall and X-ray showed evidence of complete collapse of the right lobe of the lung. He was treated at Person County Memorial Hospital until February 12, 1992, at which point he was transferred to Duke University Medical Center (DUMC). Treatment records from DUMC show that the Veteran was transferred to that facility from Person County Memorial Hospital for further evaluation and treatment of persistent pneumothorax. On admission to DUMC the Veteran admitted to a 15-year smoking habit of one pack per day, although he reported he had recently quit. The Veteran received six days of inpatient treatment at DUMC and was discharged on February 18, 1992, with diagnosis of right chest empyema, right pleural effusion and right pneumothorax. In a statement dated in August 2006 the Veteran's spouse asserted that after the Veteran's lung collapsed she called the Reserve Center and reported the Veteran had been hospitalized. Four weeks later, she and the Veteran went to the Reserve Center to report the Veteran's return home from the hospital, but the Veteran was advised by unit that he was no longer needed and his position had been filled. (The Board notes at this point that the Veteran's Army Reserve personnel file includes a unit order that would have placed the Veteran on ACDUTRA for two days beginning February 8, 1992, to continue PLDC, but those orders were rescinded on January 24, 1992, the day after the Veteran was admitted to Person County Memorial Hospital. ) The Veteran had a VA respiratory examination in December 2011, performed by a physician who reviewed the claims file. The Veteran reported having caught cold during Reserve training at Fort Bragg in January 1992 and having been treated thereafter by Person County Hospital and DUMC. The examiner noted the clinical treatment records regarding this episode in detail. The examiner also noted the Veteran had a long history of tobacco smoking at that time (approximately 40 pack-year history) and that the Veteran had been a commercial spray painter during the period 1969-1992. The examiner noted the Veteran's subjective symptoms, and also noted clinical observations in detail, including chest X-ray that showed scarring consistent with emphysema. The examiner noted diagnoses of chronic obstructive pulmonary disease (COPD), emphysema, and resolved empyema. In regard to the etiology of the current disease, the examiner stated an opinion that it is less likely than not (less than 50 percent probable) that the Veteran's current lung disorder is a continuation or residual of the lung disorder that was treated beginning January 23, 1999. The examiner noted that treatment in January 1992 was for empyema (now resolved), bronchopleural fistula (not shown) and right pneumothorax. The examiner opined that it is less likely than not that the disorder treated in January 1992 began during ACDUTRA or was otherwise related to that period of training. As rationale, the examiner stated that empyema (accumulation of pus inside the lung) takes several weeks to one month (versus the period of time between ACDUTRA and the hospitalization) to accumulate to the point of collapsing an entire lung and producing the large amount of fluid that was documented in the medical record as having been removed from the Veteran. The examiner further explained that when combined with the contemporaneous reports of fibrosis, this pointed to a chronic lung disease, not an event caused by the weekend of ACDUTRA. Tobacco smoking, as well as the Veteran's long history of commercial painting, is more productive of the Veteran's current disorder than any service related condition. The Veteran submitted a letter in October 2012 in which he took exception to the opinion of the VA examiner cited above. The Veteran argued he had been treated in January 1992 for empyema, not emphysema. He also asserted that he had contracted pneumonia at Fort Bragg, which is the reason his lung collapsed. He also stated he had begun commercial painting in 1984, not in 1969 as cited by the examiner. With respect to the emphysema, the Board notes that emphysema was specifically noted on a February 1992 cytopathology report. Moreover, the VA examiner specifically acknowledged and fully discussed the Veteran's treatment for empyema. Moreover, to the extent that the date of employment as a commercial painter was incorrect, such does not change the examiner's primary rationale for the conclusion that the illness resulting in the Veteran's empyema did not arise during his period of ACDUTRA. Review of the evidence above shows the Veteran has current COPD. Thus, he has demonstrated a current diagnosed respiratory disorder and the first element of service connection is met. However, a veteran seeking disability benefits must establish not only the existence of a current disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000). There is no indication that the Veteran had a respiratory disorder in active duty or during ACDUTRA, and the Veteran was clearly not treated for respiratory problems until 10 days weeks after his weekend of ACDUTRA was completed. The Veteran essentially contends that he contracted a respiratory disorder during ACDUTRA that progressed into pneumonia after he returned home, but this theory is refuted by the opinion of the VA examiner cited above. The Board finds at this point that the VA examiner was fully informed of the pertinent factual premises and that he provided a fully-articulated opinion supported by reasoned analysis. The opinion is accordingly probative of the issue on appeal and may be relied upon by the Board. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The Veteran has registered his disagreement with the VA examiner's diagnosis and conclusions. However, the etiology of a respiratory disorder is a complex medical question not within the competence of a layperson, especially in the presence of other causative factors such a smoking history and occupational exposures. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board finds the opinion of the VA examiner to be significantly more probative than the Veteran's lay assertion. Moreover, there is no medical opinion to the contrary. In sum, based on the evidence and analysis above the Board finds the preponderance of the probative evidence indicates that the Veteran does not have a current respiratory disorder that is relate to his military service. While the Veteran was demonstrably treated for respiratory complaints within 10 days after performing ACDUTRA in January 1992, competent and uncontroverted medical evidence of record establishes that such treatment was not caused by a disease acquired during ACDUTRA, and also establishes that the Veteran's current respiratory disorder is not related to ACDUTRA. Accordingly, the criteria for service connection are not met and the claim must be denied. Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER Service connection for a pulmonary disorder is denied. REMAND The Board finds that additional development is required prior to adjudication of the appeal for service connection for bilateral hip disability. The Veteran's service treatment records are silent in regard to any left or right hip disorder having been manifested during the Veteran's first period of active duty from September 1967 to September 1969, or during his second period of active service from January 1991 to March 1991. The Veteran contends that he has a chronic bilateral hip disorder that is due to accumulated wear-and-tear during service, such as jumping out of supply trucks and running. The Board notes the Veteran had reserve service in addition to his periods of active duty. However, he has denied experiencing any actual injury to his hips; thus, his general activities as a reservist are not for consideration. Treatment records from Dr. Dimmig show the Veteran had hip replacement surgery in 2002 and a total right hip replacement in 2004. The primary diagnosis was osteoarthritis of the pelvis. To support his claim, the Veteran submitted an undated letter from "Dr. Thomas Demique" that was received by the RO in October 2009. The letter states as follows: "I, Thomas Demique, state that it is more likely than not that the time [the Veteran] spent in service running and jumping off of army trucks. These conditions could have caused all the complications. The complications lead to the complete hip replacement on both sides." Due to the grammatical errors in the letter cited above, as well as the misspelling of Dr. Dimmig's name, the Board requested clarification on remand. The AMC submitted a request to Dr. Dimmig's office for clarification as to whether the signature on the letter was genuine. Dr. Dimmig's office replied in August 2012 that the signature was genuine, but that the Veteran had typed the letter and asked Dr. Dimmig to sign it. The office noted Dr. Dimmig had either not noticed the errors in the letter or had not asked the Veteran to correct the spelling. While this letter, in light of the explanation above, clearly reflects the Veteran's opinion as to the origins of his hip disability, it is unclear whether it reflects Dr. Dimmig's opinion, as it is questionable whether the physician actually read what he was signing. Moreover, the opinion, to the extent it does represent Dr. Dimmig's belief, is speculative and provides no rationale. However, as the threshold for triggering the duty to assist in obtaining a medical opinion is low, the Board will remand this case for a VA medical opinion to be obtained. 38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, this issue is REMANDED for the following action: 1. Send the claims file to a VA orthopedic specialist to obtain an opinion as to whether the Veteran's bilateral hip disability is related to active service. If an examination is deemed necessary to respond to the request, one should be scheduled. Following review of the claims file, the specialist should provide an opinion as to whether it is more likely (greater than 50% probability), less likely (less than 50% probability), or at least as likely as not (50/50 probability) that the Veteran's bilateral hip disability is etiologically related to his active service. In rendering this opinion, the examiner should address the Veteran's contention that his hip disability is due to running and jumping from trucks during active service (1967 to 1969 and January 1991 to March 1991). A rationale for the opinion should be provided. 2. After the development requested above has been completed to the extent possible, the RO/AMC should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the matter 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs