Citation Nr: 1413093 Decision Date: 03/27/14 Archive Date: 04/08/14 DOCKET NO. 10-04 274 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for residuals of Valley Fever, claimed as a lung disorder. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran had active service from May 1983 to July 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO), in Salt Lake City, Utah, as part of the Benefits Delivery at Discharge (BDD) program. The purpose of the BDD program is to help ensure a smooth transition from military to civilian status by allowing service members to file pre-discharge claims for disability compensation with VA. In order to facilitate the quick processing of claims under the BDD program, the Virtual VA paperless claims processing system is utilized. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits. Because the current appeal was processed as part of the Virtual VA system, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that a claimant's identification of the benefit sought does not require any technical precision. See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007). A claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability. See Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (stating that, when determining the scope of a claim, the Board must consider "the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim"); 38 C.F.R. § 3.159(c)(3) (2013). In light of Brokowski and Clemons, and the Veteran's testimony in which he clarified that he was seeking service connection for the residuals of Valley Fever, the Board has recharacterized the claim as indicated on the title page. In April 2011, the Veteran testified at a video-conference hearing over which the undersigned Veterans Law Judge presided. In June 2011, the Board remanded this claim for additional development. The requested actions have been completed and the claim is again before the Board. FINDING OF FACT The most competent, credible, and probative evidence of record is against a finding that the Veteran currently suffers from residuals of Valley Fever, claimed as a lung disorder, that was incurred or aggravated by active military service. CONCLUSION OF LAW A lung disorder was not incurred in nor aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act (VCAA) The 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 & Supp. 2012)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, a May 2008 letter provided notice to the Veteran of what information and evidence was needed to substantiate his claim for service connection, including informing him of what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. This letter also advised him of the evidence needed to establish a disability rating and effective date for the claim on appeal. The claim was last readjudicate in June 2012. VA has made reasonable efforts to obtain records relevant to the claim adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, service personnel records, and private and VA treatment. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Veteran was also afforded VA examinations in June 2008, June 2010, and March 2012, and an addendum opinion in May 2012, in connection with his claim. In obtaining the March 2012 examination and May 2012 addendum opinion, and additional private and VA treatment records, the Board finds there has been substantial compliance with the Board's June 2011 remand directions. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The Veteran has also been afforded a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the hearing officer who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the presiding Veterans Law Judge identified the issue to the Veteran and asked specific questions directed at identifying whether the Veteran met the criteria for service connection. Additionally, the Veteran volunteered his treatment history and symptoms during and since service. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), and he did not identify any prejudice in the conduct of the Board hearing with respect to the issue. The hearing focused on the elements necessary to substantiate the claim, and the Veteran provided testimony relevant to those elements. As such, the Board finds that there is no prejudice in deciding the claim at this time and no further action pursuant to Bryant is necessary. In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claims below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in Virtual VA and VBMS. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all 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 claims and what the evidence in the claims files shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). II. Service Connection The Veteran contends that he suffers from residuals of Valley Fever, claimed as a lung disorder, as a result of his military service. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). 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). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board also is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. The third and final factor involves consideration of whether the opinion is supported by a reasoned analysis. 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). The Veteran's service treatment records show he was treated for acute chest pain in August 2001. In February 2002 and February 2003, he was treated for an upper respiratory infection. A January 2008 chest X-ray showed a smooth nodule in the left lower lobe that was determined to likely be a benign granuloma. A subsequent February 2008 chest CT showed granulomatous process in the left lower lobe. It was recommended a CT be repeated in 3 to 6 months. In May 2008, the Veteran was again scheduled for a chest CT, which showed no new pulmonary nodules. The treating physician noted that the findings are consistent with prior infectious and inflammatory etiology. A specific pulmonary disorder was not diagnosed. A June 2008 VA examination acknowledged the Veteran's in-service findings of a mass in his lungs. The VA examiner also noted that apparently skin tests for Valley Fever were negative, but there is no evidence in the claims file concerning this information. The examiner noted the Veteran is a smoker with a chronic cough productive of very little sputum. There were no other systemic symptoms noted such as shortness of breath, wheezing, hemoptysis, purulent sputum, chest pain, chills, fever, night sweats, or weight loss. The only diagnosis provided was a calcified left lung spot by history. In January 2009 the Veteran received an additional follow up CT scan. At that time, the treating physician noted stated that his impression was stable pulmonary findings for 1 year and, more importantly, the findings are calcified and therefore consistent with a benign past granulomatous disease. No further CT follow-up or evaluation was deemed necessary. Additionally, in December 2009, there was evidence of lung masses that were said to have been first noted in service; however, there was no associated currently diagnosed lung disability. A March 2010 VA examination report showed that pulmonary nodules were noted, but, again, there was no evidence of associated symptoms resulting in a current disability. The examiner stated that the patient did not require medication or a pulmonary referral. There was no history of asthma or use of home oxygen. The Veteran admitted to some productive cough on and off, but the examiner determined that the cough appeared to be unrelated to his calcified nodules noted on CT scan and may be more likely attributed to allergies, postnasal drip or his long smoking history. Upon physical examination, the Veteran's lungs were noted to be clear to auscultation bilaterally, without any wheezes, rales or rhonchi. There was good aeration bilaterally, and no evidence of cyanosis. The examiner stated the Veteran's breathing was unlabored. The only diagnosis provided was stable pulmonary nodules of the right and left lung. Various private medical records show that the Veteran was seen for symptoms that included shortness of breath and dyspnea on exertion in October 2010. A history provided by the Veteran of Valley Fever was indicated. Records from the Veteran's psychiatrist, Dr. Reinhart, dated in November and December 2011 show a diagnosis of chronic obstructive pulmonary disorder (COPD). However, at no point during treatment for any disorder has a private physician provided an opinion as to etiology of the Veteran's claimed lung disorder, including any residuals of Valley Fever. In fact, the Veteran's private treatment records dated through 2012 primarily concern his treatment for other disabilities, such as headaches, cervical or lumbar spine. In March 2012, in compliance with the Board's June 2011 remand directives, the Veteran was again scheduled for a VA examination to first confirm whether he has a current disorder manifested by residuals of Valley Fever. If so, then an etiological opinion was requested. On physical examination, the VA examiner provided a diagnosis of granulomatous nodules of both lungs. Additionally, a diagnosis of mycoctic lung infection was provided. However, the examiner determined that this disorder was healed and inactive with mycoctic lesion, with occasional productive cough. X-rays showed moderate bronchial wall thickening but no pleural fluid or pneumothorax. No significant changes were noted. The impression provided by the VA examiner was increased infrahilar opacification concerning for pneumonia given the patient's clinical history, and superimposed moderate bronchial wall thickening. As to the etiology of any diagnosed disorder, the examiner stated that it is less likely as not that the claimed disorder was incurred or caused by the Veteran's military service. The examiner noted that the Veteran was diagnosed with CT evidence of granulomatous disease since 2008, but not specifically coccidiodomycosis (Valley Fever). The examiner also noted that the January 2009 CT examination showed evidence of stable healed lesions. The examiner also noted that the Veteran is a 36+ pack a year smoker with a clinical history of recurrent bronchitis and a possible acute pneumonic infiltrate on recent chest X-ray currently treated with antibiotics. The results of an October 2010 Pulmonary Function Test (PFT) were reported as normal. In May 2012, an addendum opinion was obtained. The examiner again noted the above clinical findings and opined that it is less likely as not that the Veteran has a current disorder manifested by residuals of Valley Fever. By way of rationale, the examiner pointed to the Veteran's current serology and stable chest CT from January 2009. Additionally, the examiner stated there was no conclusive evidence that the Veteran ever had a coccidiodomycosis infection in the past. Therefore, it is less likely than not the Veteran contracted Valley Fever during his military service. The Board notes that in correspondence dated in March 2011 and during his April 2011 hearing, the Veteran testified that was experiencing residuals of Valley Fever, which was first diagnosed during his period of active service while at Luke Air Force Base in 2001. As the June 2008 VA examiner noted, there is no evidence of a diagnosis of Valley Fever in the claims file. In fact, the only evidence in support of the Veteran's claim that he suffers from residuals of Valley Fever is his own unsubstantiated opinion. The Board notes that the Veteran is competent to describe the symptoms associated with claimed lung disorder, such as shortness of breath, dizziness and memory loss. However, as a lay person, the Veteran has not shown that he has specialized training sufficient to render an opinion as to the etiology of the diagnosed granulomatous disease, or any other diagnosed lung disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of pulmonary disorders, such as is the case here, requires medical testing to diagnose and medical expertise to determine the etiology. As such, the Board finds that the Veteran's opinion is outweighed by the assessment offered by the VA examiner, who examined him, reviewed his medical history, performed testing and offered a rationale in support of his assessment. Thus, because the preponderance of the evidence is against the claim, service connection must be denied.. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert. ORDER Service connection for residuals of Valley Fever, claimed as a lung disorder, is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs