Citation Nr: 1505126 Decision Date: 02/03/15 Archive Date: 02/09/15 DOCKET NO. 10-18 408 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for left pneumothorax, also claimed as collapsed left lung. 2. Entitlement to service connection for right pneumothorax, also claimed as collapsed right lung. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from May 1970 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in Waco, Texas. In April 2012, the Veteran testified during a hearing before a Veterans Law Judge (Board hearing). A transcript of that hearing is of record. However, in a February 2013 letter, the Board advised the Veteran that the Veterans Law Judge who conducted his hearing was no longer employed at the Board and he was requested to indicate if he desired a new hearing. In a February 2013 signed response, the Veteran indicated that he wished to testify at another Board hearing. In March 2013, the Board dismissed the Veteran's claim of service connection for benign prostatic hypertrophy, status post prostate reduction, and remanded his remaining claims to the RO to comply with his request to be scheduled for another Board hearing. In May 2013, the Veteran testified during a hearing at the RO before the undersigned. A transcript of that hearing is of record. In a December 2013 decision, the Board reopened the Veteran's previously denied claims for service connection for a left and right pneumothorax and remanded the reopened claims, and his claim for service connection for right ear hearing loss, to the Agency of Original Jurisdiction (AOJ) for further development. In July 2104, the Board denied the Veteran's service connection claim for right ear hearing loss, and once again remanded the service connection claims for left and right pneumothorax. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran's left pneumothorax, also claimed as collapsed left lung, is due to service. 2. The evidence is in equipoise as to whether the Veteran's right pneumothorax, also claimed as collapsed right lung, is due to service. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for left pneumothorax, also claimed as collapsed left lung, have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.6, 3.159, 3.303 (2014). 2. The criteria for an award of service connection for right pneumothorax, also claimed as collapsed right lung, have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.6, 3.159, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). At the Veteran's May 2013 Board hearing, he testified that he was occasionally seen on sick call for a cold or flu that was treated with antibiotics (Hearing Transcript, p. 10). He reported that in November 1972, he experienced his first left-sided pneumothorax while at home in bed. He stated that this was the first indication of a problem with a collapsed lung. (Transcript, pgs. 10-11). The Veteran's left lung subsequently collapsed several more times between 1972 and 1977, after which he underwent left lung surgery at the VA Medical Center (VAMC) in Dallas. His right lung also collapsed at that time. (Transcript, pgs. 11-12). Surgeons advised him that his lung problem was mostly caused by service. His right lung collapsed again and he underwent right lung surgery in approximately 1980 (Transcript, p. 16). He still experienced chest problems particularly when he had a cold. He had no lung problems between 1980 and 2007, until he fell, and both lungs partially collapsed (Transcript, pgs. 13, 16). A June 1977 correspondence from the Veteran's mother states that the Veteran's lung had collapsed four times since service (VBMS, 6/28/77). Service treatment records reflect only a bad cough and sore throat in September 1970 (VBMS, STRs p. 16). There was no follow-up treatment or findings of a collapsed lung. His December 1971 separation examination yielded normal findings (VBMS, STRs, pgs. 31-32). Post service treatment records reflect that in November 1972, the Veteran was treated for 10 percent pneumothorax. In January 1974, he once again reported chest pain which was deemed to be 5-10 percent pneumothorax. In December 1974, it was 50-60 percent pneumothorax (VBMS, 7/18/77). In September 1977, the Veteran was diagnosed with recurrent pneumothorax, and he underwent a left axillary thoracotomy and pleurodesis (VBMS 9/8/77). In February 1981, the Veteran was admitted to St. Joseph's hospital and diagnosed with right spontaneous pneumothorax (VBMS, 4/30/90). The Veteran submitted a June 1994 correspondence in which he stated that his chest began hurting during his last few months in Vietnam (VBMS 6/30/94). He stated that he went to sick call and was told that it was congestion. He was given antibiotics. He stated that the pain did not go away and he began using heroin because it was readily available. He stated that when he returned to the United States, he could no longer obtain heroin, and his chest pain resumed. Pursuant to the Board's July 2014 remand, the Veteran underwent a VA examination in January 2015 (Virtual VA). The examiner reviewed the claims file in conjunction with the examination. She noted that the Veteran was diagnosed with atraumatic pneumothorax/residual of pneumothorax in November 1972 (approximately 10 months after service). She noted that the Veteran underwent surgery on both lungs (in 1974 for the left and in 1981 for the right). The Veteran reported a total of four pneumothorax on the left and three instances on the right. There were no occurrences from 1980 until 2007. The Veteran reported persistent shortness of breath with exertion/walking. He also reported that at night, he gets pain/discomfort in areas where the tubes were placed. The examiner noted the normal findings on a September 2009 chest x-ray, as well as the pulmonary function test (PFT) findings of January 2014. She opined that the Veteran's recurrent spontaneous pneumothorax status post thoracentesis with residual scars is at least as likely as not due to military service. Her rationale was that the onset of the disability occurred within one year of military service. Analysis The Board notes that the claims have been denied by the RO multiple times (August 1977, May 1994, etc.). The RO has correctly pointed out that the Veteran's claimed disability is not among the disabilities listed in 38 C.F.R. § 3.303(e) as subject to presumptive service connection based on exposure to herbicides. However, in Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 24 F.3d 1039, 1043-44 (Fed. Cir. 1994). As such, the Board must not only determine whether the Veteran has a disability which is recognized by VA as being etiologically related to prior exposure to herbicide agents that were used in Vietnam, see 38 C.F.R. § 3.309(e), but also must determine whether his current disability is the result of active service under 38 U.S.C.A. § 1110 (West 2002) and 38 C.F.R. § 3.303(d) (2014). In order to establish service connection for the claimed disorder, 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) a causal connection between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The post service treatment records, and in particular, the January 2015 VA examination, establish that the Veteran does have a current disability. Consequently, this element of service connection is met. Regarding the second element of service connection, the Board recognizes that pneumothorax was not diagnosed in service and that the Veteran's separation examination yielded normal findings. However, the Board notes that the Veteran gave credible testimony that was consistent with previous correspondences in which he stated that he experienced chest pain in service and that he sought treatment at that time. The service treatment records only reflect that only a bad cough and sore throat in September 1970. Nonetheless, the fact that he was diagnosed with left pneumothorax a mere 10 months after service suggests that the early symptoms of the disability may have been present during service. The Board finds that the Veteran's credible testimony and the medical records (during service and within a year of service), sufficient to conclude that the Veteran has satisfied the second element of service connection. Finally, the Veteran has satisfied the third element of service connection via the January 2014 examination report that includes a competent medical opinion that links his current disability to service. The Board notes that although the Veteran is not entitled to presumptive service connection simply because left pneumothorax was diagnosed within one year of service, the proximity to service is highly probative in assessing whether service connection is warranted on a direct basis. In giving the benefit of the doubt to the Veteran, the Board finds that service connection is warranted for left and right pneumothorax. Veterans Claims Assistance Act of 2000 (VCAA) There is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). The Board notes that an RO letter dated May 2009 informed the Veteran of the manner in which disability ratings and effective dates are assigned. The RO will take such actions in the course of implementing this grant of service connection, and the Veteran may always file a timely notice of disagreement if he wishes to appeal from those downstream determinations. ORDER Entitlement to service connection for left pneumothorax, also claimed as collapsed left lung is granted. Entitlement to service connection for right pneumothorax, also claimed as collapsed right lung is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs