Citation Nr: 1542509	
Decision Date: 10/02/15    Archive Date: 10/13/15

DOCKET NO.  10-27 550A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for pulmonary alveolar proteinosis (PAP).


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


WITNESSES AT HEARING ON APPEAL

Appellant and Daughter


ATTORNEY FOR THE BOARD

T. L. Douglas, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from November 1971 to February 1980, and from November 1990 to June 1991.  He served in Southwest Asia from January 1991 to May 1991.  He had additional military reserve service until June 2001. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA).  In May 2015, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge.  A copy of the transcript of that hearing is of record.  


FINDING OF FACT

Pulmonary alveolar proteinosis, a diagnosed chronic multisymptom illness of partially understood etiology and pathophysiology, was not manifest during active service and is not shown to have developed as a result of an established event, injury, or disease during active service.


CONCLUSION OF LAW

Pulmonary alveolar proteinosis was not incurred or aggravated as a result of active service nor may service connection be presumed.  38 U.S.C.A. §§ 1101, 1110, 1131, 1112, 1113, 1117, 1118 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (20154).  The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claim by correspondence dated in February 2008.  

The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained.  The available record includes service medical records, VA treatment records, VA medical opinions, and statements and testimony in support of the claim.  The Board finds there is no evidence of any additional existing pertinent records.  Further attempts to obtain additional evidence would be futile.  

When VA provides an examination or obtains an opinion, it must ensure that the examination or opinion is adequate.  VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms.  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) (2015).  Although in a September 2009 notice of disagreement the Veteran asserted, in essence, that a July 2009 VA medical opinion failed to adequately consider his exposure to chemicals and dust in Kuwait as a fuel truck driver and that records for another Veteran with a similar name may be included in his record because of a VA scheduling problem, the Board finds no merit to those claims.  In fact, the mentioned reference to a July 9, 2009, VA examination involves a VA medical opinion based upon a review of the Veteran's record without a physical examination.  There are no pertinent records that may be reasonably found to be attributable to another Veteran, nor competent evidence indicating any significant distinction in the exposure as identified by VA medical opinion related to duties as a mechanic for many years in service and possible exposure as a fuel truck driver for approximately five months.  The Board notes that the July 2009 VA medical opinion, in fact, addressed respiratory exposure to silica, oil fire products, and other combustible pollutants.  There is no indication the examiner inappropriately failed to consider any pertinent evidence associated with possible exposures in Kuwait as a fuel truck driver.  The available medical evidence is sufficient for an adequate determination.  There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant.

Service Connection

Service connection may be granted for a disability resulting from injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015).  In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d) (2015).  

Where a Veteran is seeking service connection for a disability, due consideration shall be given to the places, types, and circumstances of service as shown by the service record, the official history of each organization in which the Veteran served, the Veteran's medical records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a) (West 2014).  In the case of a Veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in that service.  38 U.S.C.A. § 1154(b) (West 2014); 38 C.F.R. § 3.304(d) (2015).

Service connection can be granted for certain chronic diseases if manifest to a degree of 10 percent or more within one year of separation from active service.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015).  Pulmonary alveolar proteinosis is not a chronic disease for presumptive service connection purposes.

Compensation will be paid for disability due to undiagnosed illness and medically unexplained chronic multisymptom illnesses to a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability if that disability became manifest either during active service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2016, and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 U.S.C.A. § 1117 (West 2014); 38 C.F.R. § 3.317(a) (2015).  Presumptive service connection may also be established for certain infectious diseases if manifest to a degree of 10 percent or more within one year from the date of separation from a qualifying period of service.  38 U.S.C.A. § 1118 (West 2014); 38 C.F.R. § 3.317(c) (2015).  

The term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstrations of laboratory abnormalities.  Chronic multisymptom illness of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be medically unexplained.  38 C.F.R. § 3.317(a)(2)(ii) (2015).  Pulmonary alveolar proteinosis is not a disease recognized as a long-term health effect potentially associated with infectious diseases for presumptive service connection purposes.

If signs or symptoms have been attributed to a known clinical diagnosis, service connection may not be provided under the specific provisions pertaining to Persian Gulf veterans.  VAOPGCPREC 8-98 (1998), 63 Fed. Reg. 56703 (1998).  The very essence of an undiagnosed illness is that there is no diagnosis.  Stankevich v. Nicholson, 19 Vet. App. 470 (2006); Gutierrez v. Principi, 19 Vet. App. 1 (2004) (a Persian Gulf War Veteran's symptoms cannot be related to any known clinical diagnosis for compensation to be awarded under 38 U.S.C.A. § 1117).  

Even though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection.  Stefl v. Nicholson, 21 Vet. App. 120 (2007).  When a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact incurred during service.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic.  Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b) (2015).  Continuity of symptomatology applies to those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

In order to prevail on the issue of entitlement to service connection, 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 present disease or injury.  Hickson v. West, 12 Vet. App. 247 (1999).  A Veteran seeking service connection must establish the existence of a disability and a connection between service and the disability.  Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000).  

Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent.  Clyburn v. West, 12 Vet. App. 296 (1999).  Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example, a broken leg, and sometimes not, for example, a form of cancer), (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 (Fed. Cir. 2007).

Lay evidence presented by a Veteran concerning continuity of symptoms after service may generally be considered credible and competent regarding those issues for which is can be competent, regardless of a lack of contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (2006).  The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence.  Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997).  VA may favor one medical opinion over another, provided an adequate basis is provided.  Owens v. Brown, 7 Vet. App. 429 (1995).

It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant.  38 C.F.R. § 3.102 (2015).

The Veteran contends that he has pulmonary alveolar proteinosis as a result of environmental exposure, including oil fire and petroleum fumes, during service in the Persian Gulf War.  In statements and testimony in support of the claim, the Veteran reported, in essence, that he had no pulmonary problems prior to service in Southwest Asia, but that subsequent to his return, his health deteriorated with unintended weight loss, fatigue, and shortness of breath.  He stated he had been unable to complete physical training tests at the end of service.  His daughter testified that before he served in the Persian Gulf War he was healthy and that after his return he experienced colds, that he was always tired, and that had shortness of breath.  The Veteran provided medical literature in support of the claim in September 2009 including an internet source article noting that the pathophysiology of PAP has been described as occurring in primary and secondary forms.  It was noted that in primary form it was idiopathic and that in secondary form it occurred in association with various pathologies including certain occupational exposures, particularly mineral dusts and fumes, such as aluminum dust, titanium dioxide, cement dust, fibrous insulation material, and nitrogen dioxide.  In several studies it was noted that PAP had been associated with infections including infection by Nocardia, mycobacterium tuberculosis, nontuberculosis mycobacteria, cytomegalovirus, and fungal infections such as histoplasmosis and cryptococcosis.  

The service medical records are negative for complaint, treatment, or diagnosis associated with pulmonary alveolar proteinosis.  The Veteran's April 1991 separation examination revealed a normal clinical evaluation of the lungs and chest.  His weight at that time was 197 pounds.  It was noted he denied having fever, weight loss, rash, skin infection, or cough.  A March 1996 report noted his weight was too high at 214 pounds.  He denied having had any shortness of breath in a March 1996 report of medical history.  A March 1996 examination report revealed a normal clinical evaluation of the lungs and chest.  Records show the Veteran served in Southwest Asia from January 1991 to May 1991 and that his primary specialty at that time included motor transportation operator and industrial gas production specialist.  Prior separation reports noted primarily specialty including wheel vehicle mechanic.  Personnel records include a physical fitness test scorecard noting he failed runs in April 1999, April 2000, and July 2000.  His weight was 222 pounds in April 1999, 219 pounds in October 1999, 223 pounds in April 2000, and 222 pounds in July 2000.

VA treatment records show a surgical diagnosis of pulmonary alveolar proteinosis was provided in April 2007 with subsequent VA treatment beginning in July 2007.  The treatment report includes no opinions as to etiology.  

A January 2008 VA medical statement noted that it was highly likely that the Veteran was "exposed to certain dusts, as well as smoke, in the Persian Gulf."  It was noted that exposure to aluminum, titanium dust, and infection with pneumocystis Jiroveci can produce pulmonary alveolar proteinosis.  The physician, a VA primary care staff physician, found the Veteran's pulmonary alveolar proteinosis was as likely as not related to his service.  

A July 2009 VA medical opinion based upon a review of the evidence then of record and a telephone interview with the Veteran by a VA pulmonary attending physician found that it was less likely that the Veteran's pulmonary alveolar proteinosis was caused by or a result of respiratory exposure to silica, oil fire products, or other combustible pollutants.  The examiner stated that it was very unlikely the disease was related to the Veteran's service in the Persian Gulf War, and, additionally, that there was no evidence suggesting that his pulmonary alveolar proteinosis was caused by personal exposure to oil, grease, or dust associated with vehicle repair work.  It was noted that pulmonary alveolar proteinosis is a disease that may be congenital or acquired in middle age, and that most recently the acquired form of the disease had been associated with patient-derived autoimmune antibodies directed at granulocyte colony stimulating factor (GM-CSF).  The disorder typically caused shortness of breath due to hypoxia and, if severe, weight loss.

It was noted the Veteran began having symptoms in 2006 including weight loss and dyspnea and was diagnosed with alveolar proteinosis by lung biopsy in April 2007.  The examiner noted he had served in the first Persian Gulf War from January 1991 to May 1991 and that during that time he was exposed to dust from sand storms and toxic smoke from oil field fires.  Prior to that time, he served in the active service as an army mechanic and the Veteran stated that he had been exposed to oil, fuel, and grease during service as a mechanic.  He stated he was essentially asymptomatic following discharge.  The examiner noted that pulmonary alveolar proteinosis was a relatively rare disease and that secondary causes had been associated with acute silica inhalation, autoimmunodeficiency disorders, malignancies, and hematopoietic disorders.  Secondary causes of alveolar proteinosis were noted to be rarer than the acquired disease.  The age at onset of the disease in the Veteran was found to be relatively typical for the acquired form of alveolar proteinosis while the relatively long period of time following his service in the Persian Gulf War was atypical for a secondary cause.  Moreover, there did not appear to be any known association of alveolar proteinosis with any known Persian Gulf War exposure.  The examiner noted that, conceivably, acute silicosis could occur resulting from sand storm exposure in the gulf area, but that this would be a new association.  Likewise, the association of pulmonary alveolar proteinosis had, to the examiner's knowledge, not been described with oil fire products.  Both Persian Gulf War silica and oil fire inhalation were noted to have been researched fairly extensively with no mention of pulmonary alveolar proteinosis as associated with either exposure.  

A May 2011 medical statement from a VA pulmonary/critical care medicine physician noted that the Veteran had served in Operation Desert Storm and was exposed to heavy inhalation of fumes from oil fires at that time.  The physician noted that it had been their "concern that this is as likely as not to have caused his pulmonary condition as he had no history of any pulmonary impairment previously."  

Based upon the evidence of record, the Board finds that pulmonary alveolar proteinosis is a diagnosed chronic multisymptom illness of partially understood etiology and pathophysiology and that the Veteran's pulmonary alveolar proteinosis was not manifest during active service and is not shown to have developed as a result of an established event, injury, or disease during active service.  The Veteran is shown to have served in Southwest Asia during the Persian Gulf War and his report of exposure to chemicals and environmental elements from sand storms, oil fires, a petroleum products is consistent with the circumstances of his service.  However, there evidence does not support a finding of a disability due to undiagnosed illness at any time since service nor that he experienced a recognized infectious disease, to include mycobacterium tuberculosis infection, that was manifest within one year from the date of separation from a qualifying period of service in June 1991.  The opinion of the July 2009 VA examiner is found to be persuasive and is shown to have been based on a review of the evidence of record with adequate rationale.  The examiner is shown to have adequately considered the credible evidence of record as to symptom manifestation.  Dalton v. Nicholson, 21 Vet. App. 23 (2007).  The examiner provided a persuasive rationale as to why it was less likely that PAP was related to service or exposures during service.

The lay statements provided by the Veteran and his daughter, to the extent they assert that symptoms such as weight loss, fatigue, or shortness of breath began soon after separation from service in June 1991, are found to be not credible due to inconsistency with the other evidence of record.  Specifically, it is significant that the Veteran denied having fever, weight loss, rash, skin infection, or cough in April 1991 and that he denied having had any shortness of breath in a March 1996 report of medical history.  

In determining whether evidence submitted by a claimant is credible, VA may consider internal consistency, facial plausibility, and consistency with other evidence.  Caluza v. Brown, 7 Vet. App. 498 (1995); Buchanan v. Nicholson, 451 F.3d 1331 (2006) (VA can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility); Macarubbo v. Gober, 10 Vet. App. 388 (1997) (credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor); Pond v. West, 12 Vet. App. 341 (1999) (in case where claimant was a physician, and therefore a medical expert, that the Board should properly consider the appellant's own personal interest in the outcome of the case).  

Although the January 2008 and May 2011 VA medical statements are found to be competent evidence, the Board finds they warrant a lesser degree of probative weight than the July 2009 VA medical opinion.  The July 2009 examiner is shown to have conducted substantial research pertinent to the claim and to have specifically found that the Veteran's presentation of pulmonary alveolar proteinosis more typical of an acquired, primary form of the disease.  Neither the January 2008 or May 2011 VA physicians are shown to have considered that fact.  Nor was any information provided by the January 2008 care provider as to whether evidence, in fact, demonstrated that the Veteran had actual aluminum or titanium dust exposure in service or an infection with pneumocystis Jiroveci.  The May 2011 physician's concern that the Veteran's exposure to heavy inhalation of fumes from oil fires as likely as not to have caused his pulmonary condition since he had no history of any pulmonary impairment without further rationale or reference to scientific study is found to be too equivocal or speculative to warrant significant probative weight.  Bloom v. West, 12 Vet. App. 185, 187 (1999).  The Board finds that VA examination opinion in July 2009 was more thorough and included review of medical research regarding the rare condition of PAP.  The examiner provided a persuasive rationale, with reference to medical research, in finding that the disability was less likely due to service.  The Board finds that is the most persuasive evidence in this case.

The Board further finds that the Veteran is competent to provide evidence as to observations and some medical matters, but not to establish a medical diagnosis or provide opinions as to etiology.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (2006).  As questions of medical diagnosis and any relationship to service are complex etiological questions of the type of medical matters which laypersons are not competent to provide, such statements are insufficient to establish service connection.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (Board must determine whether claimed disability is type of disability for which lay person is competent to provide etiology or nexus evidence).  There is no indication that the Veteran has any medical training or expertise as to this matter and he is not competent to provide a diagnosis or an etiology opinion.  

When all the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).

The Board finds that the preponderance of the evidence is against the claim, and that service connection must be denied.  38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for pulmonary alveolar proteinosis is denied.



____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs