Citation Nr: 1756724 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 10-12 332 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for residuals of a lung disorder, to include bronchiectasis. ATTORNEY FOR THE BOARD R. Kettler, Associate Counsel INTRODUCTION The Veteran had active service from January 1943 to August 1945. He died in September 2011. The appellant is his surviving spouse and has been recognized as the substitute claimant for the purpose of processing this appeal to completion. 38 U.S.C. § 5212A (2012). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In August 2013, August 2016, and August 2017, the Board remanded the matter for additional development and it now returns for further appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT Residuals of a lung disorder, to include bronchiectasis, are not shown to be causally or etiologically related to any disease, injury, or incident during service, and bronchiectasis did not manifest within one year of service discharge. CONCLUSION OF LAW The criteria for service connection for residuals of a lung disorder, to include bronchiectasis, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Further, the appellant has not alleged any deficiency with respect to VA's duties to notify or assist. See Scott, supra (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as bronchiectasis, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The record reflects that the Veteran is in receipt of the Purple Heart and Combat Infantryman Badge. As such, the provisions of 38 U.S.C. § 1154(b) are applicable in this case, which state, in pertinent part, that in any case where a veteran is engaged in combat during active service, lay or other evidence of service incurrence of a combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the Veteran. The Federal Circuit has held that the presumption found in § 1154(b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). The combat presumption, however, does not alleviate the requirement that the evidence show current disabilities attributable to the past in-service disorders. See generally Clyburn v. West, 12 Vet. App. 296, 303 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The appellant seeks service connection for the Veteran's residuals of a lung disorder. During his lifetime, the Veteran asserted that service connection for such disorder is warranted as a result of his service during World War II, specifically during his time in Normandy and the Battle of the Bulge. In this regard, the Veteran indicated that he was evacuated to a military hospital for respiratory symptoms that included coughing up blood. See August 2009 Correspondence. In this regard, despite the fact that a majority of the Veteran's service records were destroyed in the 1973 fire at the National Personnel Records Center, his available service treatment records (STRs) include a May 1945 chest x-ray that showed some infiltration in the right lung. The Veteran was thereafter diagnosed with possible lung disease. However, a July 1945 report reflected that the Veteran's chest examination revealed no evidence of active pathology in either lung. At separation in August 1945, clinical evaluation of the lungs and chest, including an x-ray, was listed as normal. Post-service VA treatment records note a past medical history of bronchiectasis and hemoptysis. When hospitalized for right lower lobe pneumonia complicated by hemoptysis in June 2007, the Veteran underwent a CT scan that revealed significant infiltrative changes in the right lower lung, some old granulomatous calcified disease, mediastinal lymphadenopathy of questionable significance with some bronchiectatic changes. A July 2010 VA treatment record noted recurrent hemoptysis since 2007, probably secondary to underlying bronchiectasis and possible lower lobe pneumonia. Another treatment record noted the Veteran was diagnosed with bronchiectasis following a bronchoscopy done in 2007. The test showed markedly friable mucosa throughout the entire lung, without malignant findings. In order to determine the nature and etiology of the Veteran's lung disorder, a VA medical opinion was provided in November 2013. At such time, the examiner noted the foregoing in-service complaints, treatment, and diagnoses. He then noted that bronchiectasis first appeared in the Veteran's medical record in his problem list in December 2007. In this regard, he indicated that there was no documentation of bronchiectasis in the progress notes prior to the time when this diagnosis appeared in his problem list. Earlier in 2007, he had been diagnosed and treated for pneumonia complicated by hemoptysis. The examiner indicated that, despite the fact the Veteran did not have clinical symptoms typical of bronchiectasis, this diagnosis subsequently and routinely appeared in progress notes after December 2007. In this regard, the examiner observed that there is little to no radiologic evidence for bronchiectasis. Computerized tomography of the chest is the radiographic procedure of choice in the diagnosis of bronchiectasis. Between 2007 and 2011, the Veteran underwent computerized tomography of the chest seven times. In six of these studies, the radiologists failed to identify bronchiectasis. In one of the computerized tomograms of the chest in 2007, the radiologist reported that central bronchiectasis was present. However, central bronchiectasis is characteristic of cystic fibrosis, allergic bronchopulmonary aspergillosis, Williams Campbell syndrome, and congenital tracheobronchomegaly. The Veteran had no manifestations of these disorders. The most common cause of bronchiectasis in the United States is an untreated severe infection of the lower respiratory tract. From his medical history, a mild lower respiratory infection might be suspected. However, post-infective bronchiectasis typically presents with a peripheral, not central, distribution. This finding is lacking in all of the Veteran's computerized tomograms of the chest. In addition to reviewing the Veteran's medical record, the examiner indicated that he personally reviewed each of the computerized tomograms of the chest and found no evidence of bronchiectasis. As such, the examiner found that it appears that such diagnosis was entered into the progress notes and problem list in error in 2007 and was thereafter perpetuated. The examiner further noted that the Veteran has claimed sporadic episodes of hemoptysis that he related to his respiratory illness in 1945. However, hemoptysis was not documented in his medical record until 2007. Prior to 2007, there was no documentation of hemoptysis in his medical record. The Veteran's hemoptysis in 2007 occurred in conjunction with pneumonia complicated by his anticoagulation therapy. He had a second episode of hemoptysis in 2009. He was treated with an antibiotic for bronchitis and his anticoagulation therapy was held for a short time. He had a third episode of hemoptysis in 2010, which occurred in the setting of tracheobronchitis and pneumonia, and was again complicated by his anticoagulation therapy Based on the foregoing, the VA examiner concluded that the diagnosis of bronchiectasis is disputed. There is little to no evidence for this disorder in the Veteran. Since the diagnosis of bronchiectasis is in error, such cannot be linked to his service-related respiratory illness. He further stated that it therefore follows that the Veteran's hemoptysis cannot be linked to his service-related respiratory illness either. In the August 2016 remand, the Board found that, while the November 2013 VA examiner addressed the diagnoses of bronchiectasis and hemoptysis, he did not address the findings noted in the June 2007 CT scan. Consequently, an addendum opinion was obtained in September 2016 from a different VA examiner. At such time, the examiner noted the noted the foregoing in-service complaints, treatment, and diagnoses. He then observed that chest imaging from 1994 to 2001 showed chronic obstructive pulmonary disease (COPD) changes and chronic interstitial changes. CT scans from December 2007 during a hospitalization from pneumonia and hemoptysis revealed some minimally dilated primary bronchioles and bronchial wall thickening, but pneumonia in the lower lobes was the most evidence pathology. The examiner observed that there was evidence of mild bronchial dilation and bronchial wall thickening, but predominantly central in nature on the chest CTs from 2007 onwards, and determined that such was a nonspecific finding and not typical of large saccular pathological bronchiectasis. He further noted that the Veteran had hospitalizations for pneumonia and hemoptysis related to pneumonia and complicated by anticoagulant therapy. The examiner indicated that bronchiectasis typically results in constant cough, productive sputum with large mucopurulent secretion, and occasionally hemoptysis; however, the Veteran did not have typical symptoms of significant mucopurulent sputum and cough. He ultimately concluded that the Veteran may have had mild bronchial wall thickening and dilation suggestive of possible early mild bronchiectasis; however, his hemoptysis resulted mostly from pneumonia complicated by anticoagulation therapy. Another addendum opinion was obtained in November 2016. At such time, a third VA examiner reviewed the record in its entirety. In this regard, he noted that a review of the records showed that the Veteran was serving in the European Theatre of Operations in World War II when he came down with jaundice. Chest x-ray at the time showed infiltrate in the right lung along with moderate increase in the bronchovascular lung markings. The cause of the infiltrate was not determined. The Veteran was released from service and was sent to the hospital in the United States. Upon arrival at the hospital, he was noted to be asymptomatic from respiratory disorder. His respiratory examination was normal and a chest radiograph at the time revealed no pulmonary pathology. It was felt that the respiratory disorder had cleared before he was admitted to the hospital. No recorded antibiotic therapy is noted. The examiner further observed that the Veteran had a hospitalization in June of 2007 with coughing up bright red blood for two hours prior to presentation and associated shortness of breath. A CT scan of the chest in June 2007 revealed multiple prominent and mildly enlarged lymph nodes which were seen in the mediastinum to the largest seen in the right paratracheal region, which was 1.2 cm in short axis dimension. There was presence of multifocal infiltrates probably representing pneumonia mainly seen in the right lower lobe but also in the right upper, right middle, and left lower lobes. The Veteran was diagnosed with, and treated for, pneumonia with associated hemoptysis. Review of chest x-rays from June 2001 until June 2004 revealed no infiltrates in either of the lungs, and the Veteran was asymptomatic. Further, while no chest x-rays dated from 1945 to June 2001 were on file, it was noted that the Veteran did not have any respiratory symptoms during such time, and did not seek medical treatment for any pulmonary issues. The Veteran was asymptomatic until he came down with the illness in June 2007, reflective in the form of shortness of breath and hemoptysis. In this regard, the examiner noted that such finding is suggestive of community acquired pneumonia, and is unrelated to the finding of right-sided lung infiltrate in 1945. The examiner further noted that the Veteran had a CT scan of the chest in November 2007 that showed minimal mainly central bronchiectasis with mild bibasilar scarring, which by itself could be related to the pneumonia that he had in June 2007. Therefore, the examiner opined, that there is less than 50 percent likelihood that the Veteran has a respiratory disorder related to the illness and right-sided lung infiltrate that he had back in 1945. In the August 2017 remand, the Board found that an addendum opinion was necessary in order to address the diagnoses of granulomatous calcified disease and mediastinal lymphadenopathy of questionable significance as shown on the June 2007 CT study. Thereafter, an addendum opinion was obtained in September 2017 from another VA examiner. At such time, she opined that the granulomatous calcified disease and mediastinal lymphadenopathy as shown on the June 2007 CT study are not at least as likely as not related to any incident of the Veteran's military service, including the infiltration of the right lung noted during service. In support of her conclusion, the September 2017 examiner noted that community-acquired pneumonia is a reasonable cause of mediastinal lymphadenopathy. The examiner explained that mediastinal lymphadenopathy would resolve when the pneumonia cleared. Noting a June 2009 CT scan, the examiner observed that it revealed no mediastinal lymphadenopathy. Finally, the examiner explained that granulomatous calcified disease is not uncommon to the general population, particularly residents of Tennessee. After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the claim for service connection for residuals of a lung disorder. In this regard, the Board considers the November 2013, September 2016, November 2016, and September 2017 VA examiners' medical opinions to be of great probative value. In this regard, the VA examiners provided a complete rationale for the stated opinions, and supported their opinions by utilizing their medical knowledge as well as citing to evidence included in the record. The opinions were based on a comprehensive review of the claims file, available history provided in the file, and included references to pertinent evidence of record. Notably, the November 2016 and September 2017 examiners offered a negative direct nexus opinions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, there is no medical opinion to the contrary. The Board notes that lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. §§ 3.303(a), 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, a determination of whether a lung disorder is related to service requires specialized training for a determination as to diagnosis and causation, and is therefore not susceptible of lay opinions on etiology. Therefore, the Veteran's and appellant's statements do not constitute competent medical evidence in support of the current claim. The Board has considered whether presumptive service connection for bronchiectasis is warranted, to include on the basis of a continuity of symptomatology. See 38 C.F.R. §§ 3.303(b), 3.309(a); Walker, supra. However, the first diagnosis of bronchiectasis was many years after service, in 2007, and, based on the November 2013 VA examiner's opinion, there is some dispute as to whether such a diagnosis was accurate. Regardless, if indeed such diagnosis is accurate, bronchiectasis was first diagnosed in 2007, many years after the Veteran's discharge. Furthermore, as noted by the November 2016 VA examiner, the Veteran has not alleged a continuity of symptomatology since service. As such, presumptive service connection for bronchiectasis is not warranted. Therefore, the Board finds that residuals of a lung disorder are not shown to be causally or etiologically related to any disease, injury, or incident during service, and bronchiectasis did not manifest within one year of service discharge. Consequently, service connection for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. The preponderance of the evidence is against the appellant's claim of entitlement to service connection for residuals of a lung disorder. As such, that doctrine is not applicable in the instant appeal, and her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for residuals of a lung disorder, to include bronchiectasis, is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs