Citation Nr: 1758066 Decision Date: 12/14/17 Archive Date: 12/28/17 DOCKET NO. 11-17 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a respiratory disorder other than sarcoidosis, to include asthma. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. This matter was previously before the Board in September 2014. Then, the Board remanded the claim for service connection for a respiratory disorder other than sarcoidosis, to include asthma for further development. In March 2017, the Board again remanded this claim, for a more thorough VA medical examination. Moreover, the Board finds sufficient compliance with the terms of its prior remands, inasmuch as the Veteran has undergone a thorough VA re-examination that is also responsive to the rating criteria. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The RO later continued the denial of the claim through issuance of a July 2017 Supplemental Statement of the Case (SSOC). FINDING OF FACT The preponderance of the evidence weighs against reaching the conclusion that the Veteran's current respiratory disorder (other than sarcoidosis) was incurred or aggravated in service. CONCLUSION OF LAW The criteria are not met to establish service connection for a respiratory disorder, to include asthma. 38 U.S.C.A. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 a duty to assist argument). General Law Applicable to Claims for Service Connection Service connection is available for current disability resulting from disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2017). Service connection also may be granted for disease diagnosed after discharge where incurred in service. 38 C.F.R. § 3.303(d). 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). Where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. On the other hand, continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where chronicity may be legitimately questioned. A showing of continuity of symptomatology at the time of service discharge and continuing thereafter is required to support the claim. 38 C.F.R. § 3.303(b). However, the availability of continuity of symptomatology as a principle to substantiate service connection is limited to those specific diseases denoted as "chronic" under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, service connection is available for a preexisting condition provided it was aggravated during service beyond its natural progression. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service. In order to rebut the presumption of aggravation, there must be clear and unmistakable evidence that the increase in severity was due to the natural progress of the disability. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Under VA law, every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. Moreover, VA's Office of General Counsel has issued a precedent opinion holding that in order to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must demonstrate by clear and unmistakable evidence both that the disease or injury in question existed prior to service and that it was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. The determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Factual Background The Veteran served in the Army from October 1966 to September 1968, including service in the Republic of Vietnam. His report of separation, Form DD-214, indicated his in-service specialty as an armor intelligence specialist. It also indicated that he was awarded a Combat Infantry Badge, Vietnam Service Medal, and Vietnam Campaign Medal. The Veteran's pre-induction examination was performed in May 1966, and stated essentially normal findings throughout. A medical history report, completed at that time, indicated the Veteran's history of chronic or frequent colds. A November 1967 field medical card revealed treatment for a fracture to the Veteran's right ribs after he was struck in the chest with an M-79 round, which did not explode. His separation examination, performed in September 1968, noted that his lungs and chest were normal. By his July 2003 statement, the Veteran indicated that he served at Fort Hood, Texas for about one year and then was sent to Vietnam for the next year. During his next tour of duty in Vietnam he was exposed to Agent Orange. The unit he was with was the 199th Light Infantry Brigade. In August 1974 he was diagnosed with sarcoidosis (according to the Veteran this condition was "far advanced") after a surgical biopsy, and even though he had been able to do light work he had suffered with severe pain and short windedness for many years. There was to his knowledge, no cure for sarcoidosis. It was his belief that this disease was caused from exposure to herbicides for almost one year. In a subsequent statement from 2004, the Veteran again indicated he was diagnosed with sarcoidosis, after surgical biopsy at a private hospital where he was a patient for three weeks. He stated that he had been sick almost from the time he returned from Vietnam. He had sustained one cold after another, chest pain and shortwindedness. Originally he thought this lung disease was caused from exposure to Agent Orange, but after some research he now believed that it was caused by exposure to asbestos. He further did recall that he was assigned to D Troop 17th Armored Cavalry, while in Vietnam and he ate and slept on an armored personnel carrier (APC) for almost a year. These APCs were lined with asbestos. He had tried to track down medical records from several of the private physicians who had seen him over the years for respiratory problems including sarcoidosis, however, many of these physicians were no longer in practice or the places of treatment no longer existed. Previously on file, private medical records from year 2000 indicate, on cardiorespiratory evaluation, the Veteran had a history of sarcoidosis diagnosed by lung biopsy in 1974. He had some chest pain and some dyspnea secondary to this. The Veteran denied orthopnea, palpitations, angina and myocardial disease. An August 2004 lay witness statement from the Veteran's brother indicates that the Veteran as a youth was sick with colds more than a normal person would be. The Veteran constantly complained of his chest hurting a lot. He had also become very short winded. In any of the sports the Veteran played he did not have much stamina and was too stressed to finish. It appeared that something had happened to the Veteran while he was in the Army. It was clear that he was ill. The lay affiant and the Veteran had both worked for General Motors and worked together as elected union officials. The Veteran missed a lot of time from work and was on many sick leaves after returning from the Army. He used to complain a good deal about his chest hurting. The statement provider further recalled, in August 1974 the Veteran was admitted to a hospital where he was diagnosed with having advanced sarcoidosis with no cure for this lung disease. He was given Prednisone for medication. The statement provider always remembered having to wear a mask when visiting the Veteran. The statement provider indicated that he was glad to have his brother back, but the Veteran was in fact, very sick from something that happened while in the service, and he continued to get worse. Enclosed records from the Veteran's place of employment in the 1970s indicate, in October 1973 the diagnosis of pneumonia and pleurisy. In March 1974, the Veteran stated he was having chest pain, and believed he was having a recurrence of pneumonia. In July 1974 the diagnosis of rule out pulmonary tuberculosis, far advanced; sarcoidosis. In May 1976, the diagnosis was bronchitis, and sarcoidosis. When seen April 1977 the Veteran stated that he had sarcoidosis and took an antibiotic when he felt bronchitis coming on. He felt nauseous and feverish. Thereafter, the report of a December 2006 x-ray evaluation completed at a private clinic indicates an impression as follows, that there was no acute process in the chest. There was an area made of what appeared to be asymmetric interstitial markings or fibrotic change in the right lung base, unchanging from the previous digitized exam and this could be seen with multiple episodes of past aspiration pneumonitis. At any rate, the appearance of the chest was unchanged and no acute process was depicted whatsoever. Upon VA examination January 2007, the Veteran underwent evaluation of the respiratory system. The diagnosis at outset was sarcoidosis. The Veteran at that time reported that in 1973 he was being treated unsuccessfully for double pneumonia, then in August 1974 went to a hospital for treatment. The Veteran stated that they did a biopsy and found that it was sarcoidosis and he was treated with steroids for six months. The Veteran still had problems with continual pain and shortness of breath. He stated that it could get so bad that he could not go up a short stairway at times. He stated that on rainy days the pain increased. The course since onset was progressively worse. There was a history of hospitalization or surgery, specifically a biopsy in 1974 to determine sarcoidosis. There was a history of lung or chest trauma. It was indicated, the Veteran had been hit with a grenade in the chest, around November 1967 in Vietnam. There was no history of respiratory system neoplasm, pulmonary embolism, or respiratory failure. There was a history of a nonproductive cough and fever, as well as orthopnea and shortness of breath on mild exertion. The Veteran had the problem of snoring. There was a history of non-angina chest pain. A December 2006 chest x-ray completed at a VA facility had shown an impression of no acute process in the chest, with a note made of what appeared to be asymmetric interstitial markings or fibrotic change in the right lung base, unchanging from the previous digitized exam and this could be seen with multiple episodes of past aspiration pneumonitis. At any rate, the appearance of the chest was unchanged and no acute process was depicted whatsoever. A pulmonary function test was completed, which showed an impression of: mild obstructive ventilatory defect with a significant response to bronchodilators suggestive of mild chronic obstructive pulmonary disease (COPD) with asthma. The diagnosis given by examination was that of sarcoidosis. The Veteran further stated as to symptoms, he would get short of breath with minimal exertion and had problems with continual pain. He stated there were times that the pain and shortness of breath got so severe that he could not walk up a short flight of stairs, particularly when the weather was bad. The VA examiner gave the medical opinion that sarcoidosis was not caused by or a result of, or aggravated by the Veteran's military service. The stated rationale was asbestos was not a well-documented cause of sarcoidosis. VA Medical Center (VAMC) records provide a February 2009 pulmonary function test (PFT) report which indicated an impression of: no significant obstruction, however there was a significant response to bronchodilator suggestive of reactive airways/asthma. Additionally there was restrictive ventilatory issue thought to be caused partially by obesity causing extrathoracic restriction. On VA examination February 2009, it was recounted as to medical history that the Veteran reported being shot in the chest with a grenade launcher which required hospitalization for 2-3 days and about one week of light duty. He denied any treatment for any other respiratory condition while on active duty. The Veteran reported being seen at the clinic at work on multiple occasions after release from active duty due to chronic respiratory infections and colds. The reported that in 1974 he underwent a biopsy and was diagnosed with sarcoidosis. The Veteran stated he asked the physician what was the cause of this disorder, and was told the cause was unknown, it was possible it could have been caused by Agent Orange exposure but was not documented or a known cause of this disease. At the time of diagnosis, it was determined that he had stage III sarcoidosis. He was treated with steroids. Since that time he had had chest pain, shortness of breath, chronic cough and nasal drainage. He did not have exacerbations related to any activity, weather or identifiable cause. He was taking naproxen for the pain. He was not taking any other medications for the condition. He was seen on a regular basis for the condition. There was otherwise no history of respiratory system neoplasm, no history of pulmonary embolism, no history of respiratory failure. There was history of a cough, fever, hemoptysis, night sweats, orthopnea, paroxysmal nocturnal dyspnea, shortness of breath (on moderate exertion), daytime hypersomnolence with snoring and sleep disruption, swelling, weight change, non-angina chest pain (left chest region and some times in the right chest region). The Veteran was trying to lose weight to have better control of his diabetes. For respiratory abnormalities he showed decreased breath sounds. Chest expansion was slightly limited. Recent chest x-ray showed no active pulmonary disease. The diagnosis given was that of sarcoidosis. In the examiner's opinion, sarcoidosis was not caused by or the result of active military service. Sarcoidosis was a multisystem disorder of unknown etiology characterized by the accumulation of T lymphocytes, mononuclear phagocytes, and noncaseating granulomas in involved tissues. Despite advanced knowledge of the immunopathogenesis of sarcoidosis, the antigenic stimuli that initiated the disease process remained elusive. The disease had been linked to occupational exposure to beryllium and genes within the body. The only chemical that had been shown to increase the incidence of sarcoidosis was beryllium. Beryllium was an agent used to make nonmetallic alloys. The increased incidence was noted in factory workers that used this chemical in the production process. Beryllium was used to make x-ray equipment and protective gear for rooms. Mycobacterium had been implicated as a possible etiologic cause of sarcoidosis some studies had found evidence of mycobacterium in the sarcoid tissues. Based on the complete review of the records and an extensive review of the medical literature there was no evidence that the Veteran's sarcoidosis could have been caused by exposure to chemicals while on active duty. There was no medical evidence linking sarcoidosis directly to Agent Orange exposure or asbestos exposure. By a May 2010 decision, the Board denied the Veteran's prior claim for entitlement to service connection for sarcoidosis, to include as due to Agent Orange and asbestos exposure. The basis for denial was that the medical evidence of record did not show that the Veteran's sarcoidosis was directly related to his active military service. The Board made this determination from the finding that both the January 2007 and the February 2009 VA examiners concluded that the Veteran's sarcoidosis was not caused by, or a result of, or aggravated by his military service. This finding took into consideration that the Veteran was presumed to have been exposed to herbicide agents (including Agent Orange) during his military service, based on service within the Republic of Vietnam. However, there was no presumptive service connection available based on exposure to Agent Orange, under 38 C.F.R. § 3.309(e). There clearly was not established any instance of having been exposed to asbestos, based on the circumstances of the Veteran's active military service. With regard to the present appeal, by a statement accompanying his June 2011 VA Form 9 (Substantive Appeal to the Board) the Veteran recounted that he had been diagnosed in 1974 with many previous years dealing with lung problems of bronchitis, pneumonia and just a regular cold. He recounted that upon exiting military service, he came out and immediately was reporting breathing problems as well as low stamina. The Veteran then confirmed that by the instant claim he sought service connection specifically for asthma, not sarcoidosis, the disorder for which he had previously claimed benefits entitlement, that claim having been denied pursuant to the May 2010 Board decision. According to the Veteran, while VA had claimed he had no contact with asbestos he recalled that his Armored Personnel Carrier was lined with asbestos as a sound deadener and insulator. He recalled, "we lived in these machines and if you think that while bouncing around in them over rough terrain did not agitate this asbestos material you have to be trying to lie to someone." Also, they were exposed to dust, smoke, and foreign poor air quality. The Veteran's view was that he entered the Army basically in good health but immediately after discharge he experienced lung problems which had been a major health problem since being discharged. The Veteran further requested that his asthma be adjudicated service-connected for the reason that "I had mild respiratory issues on enlistment and worsened tremendously within a year or two of discharge and are a health issue today. I am saying the military service worsened my condition if it did not cause it." Thereafter, on January 2015 VA examination of the respiratory system, the diagnoses stated at outset were emphysema and sarcoidosis. As for relevant medical history, the Veteran had a history of sarcoidosis diagnosed 1974. He was on prednisone for six months. He was not on any medication for sarcoidosis. He was diagnosed with emphysema in 2007. He used an albuterol inhaler as needed. He had a biopsy of the right upper lung in 1974 when sarcoidosis was diagnosed. The Veteran's respiratory condition did not require oral or parenteral corticosteroid medications. Inhalational bronchodilator therapy was required, frequent. The condition that was predominantly responsible for the need for inhaled medications was emphysema. That condition required the use of oral bronchodilators, intermittent frequency. The Veteran's respiratory condition required the use of antibiotics. The Veteran required outpatient oxygen therapy for his respiratory condition. The Veteran had sarcoidosis and other pulmonary conditions. The Veteran did not have any findings, signs or symptoms attributable to sarcoidosis. The Veteran did not have ophthalmologic, renal, cardiac, neurologic or other organ system involvement due to sarcoidosis. A chest x-ray from January 2015 showed an impression of mild chronic lung changes compatible with mild emphysema and fibrosis. No acute cardiopulmonary disease. Thereafter, the following opinion was rendered that "the Veteran's mild emphysema is not caused by or a result of military service, related to or was aggravated by his military service or any incident therein, to include exposure to asbestos or other environmental hazards." The stated rationale was that "the Veteran's mild emphysema is not a presumptive diagnosis of Agent Orange exposure. There is no medical nexus establishing causality between mild emphysema and military service. Service medical records evidence that the Veteran was medically qualified to complete the term of his active service. The Veteran was not medically discharged from the military. The Veteran stated that he 'smoked only occasionally, rarely inhaling.'" Chest x-ray, February 2009 evidenced, "Report: PA and lateral views were obtained. There is no cardiomegaly, congestive heart failure or active pulmonary disease. Impression: No active pulmonary disease." A February 2015 chest x-ray showed "Impression: Mild chronic lung changes compatible with mild emphysema and fibrosis. No acute cardiopulmonary disease." Full consideration of all pertinent and available medical facts was rendered. On VA examination in May 2017, the diagnoses were asthma and sarcoidosis. A similar immediate post-service history was indicated. It was indicated thereafter that medical records were not available for the 1980s and 1990s. In 2006 or 2007 the Veteran was given a diagnosis of asthma and COPD. At various times since then physicians had also noted reactive airway disease and emphysema, the latter apparently related to an x-ray finding of basilar emphysema and did not represent a clinical diagnosis. The Veteran had used both steroid and bronchodilator inhalers in the past. He now used albuterol as needed, typically several times a week. There was no current use of inhaled steroids. The Veteran's respiratory condition did not require the use of oral or parenteral corticosteroid medications. Inhalational bronchodilator therapy was intermittently warranted. No use of antibiotics or outpatient oxygen therapy. The Veteran had not had asthma attacks. There was attributable to sarcoidosis persistent prominence of interstitial markings which had been stable for decades. A physical examination showed no wheezing but mild scattered rhonchi. The opinion was then provided that the Veteran's asthma was neither due to nor aggravated by service. The stated rationale was that the Service Treatment Records (STRs) did not show record of treatment for lung conditions nor any respiratory complaints. To the extent the Veteran's statement regarding frequent colds on discharge exam was probative, he made the same statement on entrance exam so whatever this represented was pre-existing and there was no evidence of aggravation. Over time different clinicians had used the terms asthma, reactive airway disease, COPD, and emphysema to describe Veteran's condition. The VA examiner did not feel the term COPD was appropriate as there was no chronic obstruction, it was more intermittent. Asthma and reactive airway disease were essentially the same thing. Emphysema was based on x-ray findings of some basilar hyperinflation. This was not a clinical diagnosis and that x-ray finding was of questionable clinical significance. The [examination] request noted an assertion that Veteran was exposed to asbestos in armored personnel carriers. The M113 armored personnel carrier was ubiquitous in Vietnam so, as an infantryman, the Veteran likely traveled in these vehicles at some time. The examiner found little evidence to support significant asbestos exposure in these vehicles. Also, the Veteran's x-rays, symptoms, and clinical diagnoses are not suggestive of asbestos exposure. The presence of aortic stenosis, which was not a manifestation of ischemic heart disease, was also contributing to respiratory symptoms. Merits of the Claim The Board has duly considered the merits of the instant claim, but finds that the best medical evidence weighs against a finding of causation, this being a causal relationship between the claimed condition and the Veteran's active military service. Accordingly, the claim must be denied. The Veteran clearly has the condition of asthma, and/or COPD, emphysema, and reactive airways disease. There is no material question, therefore, that the Veteran at present has the disability claimed. The Board is well aware, that previously the Veteran filed a different claim for entitlement to service connection for sarcoidosis. That is a wholly separate claim, for a substantively distinguishable autoimmune condition that is dissimilar from asthma even if the symptoms shown have some similarities. Consequently, the instant claim is an entirely new one, along the lines of novel theory of development. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) (claims based on distinctly diagnosed diseases or injuries must be considered separate and distinct matters). The issue then becomes causation. Based upon review of the 2015 and 2017 VA medical opinions obtained on examination that element is not met. The first of the aforementioned opinions, stated no connection between mild emphysema, and military service, particularly with no symptoms in service. The opinion is consistent with what medical history shows. The better reasoned 2017 VA examination opinion states again, no causation. The rationale cited again the lack of relevant lung disability or symptomatology during service. Also, Veteran's x-rays, symptoms, and clinical diagnoses are not suggestive of asbestos exposure. His military duties which involve usage and transportation within an Armored Personnel Carrier were not considered that which usually brought upon or was known to involve significant exposure to asbestos. The information after the fact did not indicate anyway that there was likelihood of exposure. The examiner also addressed the lack of continuity of symptomatology since service, given that general respiratory issues began in 1974, and did not reappear until the mid-2000s. Arguably, some of this is due to the fact that records from the 1980s were simply not available. However, the Board also independently notes, there is no clear demonstrated of asthma or other reactive airways disease, as existing on a continuous basis since service. Taking all this into account, the Board finds the VA medical opinion evidence probative. It is properly grounded in the medical history. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Boggs v. West, 11 Vet. App. 334, 340 (1998). Apart from medical findings, the Veteran's own assertions are considered; however, ultimately the issue of what caused respiratory ailments, specifically when there are issues of occupational exposure, possible latency, and exact illness claimed, are on the whole best resolved by medical inquiry. The Veteran in this case does not have the experience, skills, or training needed to opine as to the cause of his respiratory illness. There is no other claimed assertions competent firsthand observation that is contrary to that indicated above. Nor is there any contrary medical opinion of record. The Board has analyzed this claim under theory of direct incurrence in service. At one point the Veteran stated there was a pre-existing respiratory condition at service entrance, which if so, would have raised a theory of aggravation of pre-existing disability. Objectively speaking, there is no notation on service entrance examination of a respiratory disorder. There is no indication otherwise as to a pre-existing condition that could be verified. The presumption of soundness under 38 U.S.C.A. § 1111 as a result continues to apply. The preponderance of the medical evidence weighs against this claim. VA's benefit-of-the-doubt doctrine does not apply under these circumstances, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a respiratory disorder other than sarcoidosis, to include asthma, is denied. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs