Citation Nr: 1801107 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-23 839 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for asthma. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and Wife ATTORNEY FOR THE BOARD Leanne M. Innet, Associate Attorney INTRODUCTION The Veteran served on active duty from September 1966 to February 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina (RO). In November 2014, the Veteran testified at a hearing before a decision review officer, and in September 2017, the Veteran and his wife testified at a travel board hearing before the undersigned; transcripts are of record. This appeal was processed using the Virtual VA (VVA) and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future review of this Veteran's case should take into consideration the existence of these electronic records. The issue of entitlement to service connection for COPD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's asthma is proximately due to the Veteran's prolonged exposure to extreme cold and coal ash while on active duty. CONCLUSION OF LAW The criteria for service connection for asthma have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he is entitled to service connection for asthma because while on active duty he experienced pneumonia that permanently damaged his lungs after being exposed to prolonged cold weather and coal ash. The Board finds that competent, credible, and probative evidence establishes that the Veteran's asthma is etiologically related to his active service. In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Here, the Board reviewed all evidence in the claims file, with an emphasis on that which is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claim. With respect to the first Holton element, current disability, an August 2016 VA examination report for respiratory conditions shows a diagnosis of asthma since 1967. Accordingly, the first Holton element is met. With respect to the second Holton element, in-service incurrence or aggravation of a disease or injury, the Veteran presented testimony, additional lay evidence, and medical records. The Veteran's January 1966 enlistment examination report did not reveal any abnormalities other than use of glasses, and the Veteran stated that he was in good health. It was noted the he had usual childhood diseases, including mumps and whooping cough, without complications. The Veteran's February 1967 separation examination did not note any changes. His service treatment records showed that in December 1966 he had been seen for cough and sore throat. In a July 2012 affidavit, S.B.C. attested that he was a service buddy of the Veteran's and they served together in January 1967. He stated that the Veteran was in good physical condition and had no apparent health problems. He stated that the Veteran was assigned to walk guard duty but failed to return to the barracks the next morning as expected, rather returning the following evening. He stated that the Veteran related that he had not been relieved from his post so he walked guard duty continuously from 6:00 am to 4:00 pm. He stated that the Veteran was really sick, shaking with chills with a fever, and the Veteran went to bed. He stated that the next morning, the Veteran went to sick call and was hospitalized, where he stayed a week and was diagnosed with pneumonia. He stated that he and another service member visited the Veteran while he was in the hospital. He stated that he and the Veteran have continued to live in the same town, and he has observed the Veteran's health decline with lung problems and problems breathing. In November 2014, the Veteran testified before a decision review officer stating that he walked guard duty in sub-freezing temperatures in January 1967. He walked two hours, was relieved for four hours, then walked two hours. He stated that he was not relieved at 8:00 am as scheduled; he walked an additional eight hours straight, breathing in the coal ash from the furnaces in and around the compound area. He stated that after he was relieved, he went to bed, and the next morning he needed help to get up and go to sick call. He stated that he was hospitalized for seven days and was advised that he had pneumonia, which explained why he was coughing up blood. The Veteran stated the he now suffers from asthma and COPD. In October 2015, the Veteran presented treatment records showing that he had been hospitalized in December 1966 for seven days with a diagnosis of pneumonia NEC, left lower lobe, noting it occurred in the line of duty. The records show that the diagnosis on admission was acute respiratory distress (ARD). It was noted that the past history was unremarkable. In September 2017, the Veteran testified at a travel board hearing, telling his story of guard duty that was consistent with his testimony in November 2014. He stated that the cold was bad enough but, in 1967, heating was done with coal furnaces, and as a result there was coal ash and coal smoke mixed with the 28-degree weather, which was pretty hard to deal with especially on a prolonged basis. He stated that his teammates helped him to sick call and that he was told that he was going to the hospital. He stated that he was diagnosed as having pneumonia. The Veteran testified that he had no breathing problems prior to service and that prior to service he had played baseball and football. He stated that after the pneumonia, his breathing was impaired and progressively got worse. He stated that he is sensitive to exposures such as to coal ash and the soap aisle at the supermarket, and that he has trouble around any type of smoke. He stated that initially he self-treated with over-the-counter Bronkaid Mist. He related that the first two family physicians that he saw after service have died and he was advised that those records are no longer available. The Veteran's wife testified that they started dating in 1972 and, after they married in 1974, the Veteran tried to get healthier by running but he could not do it because he would come back with watering eyes, phlegm from his nose, and he could not catch his breath. She stated that the Veteran started using Bronkaid Mist. She stated that he was hospitalized for 11 days in 1983 and for 8 days in 1987 for breathing problems. She stated that initially doctors had been treating the Veteran for bronchitis but he did not get any better, then they identified the problem as asthma. She stated that for 45 years the Veteran's story of when his breathing problems started has not waivered. The Board finds that there is competent, credible, and probative evidence showing that the Veteran had an in-service incurrence of an event of acute respiratory distress that was subsequently diagnosed as pneumonia, which required hospitalization. The Veteran, his wife, and S.B.C., as lay persons, are competent to relate facts of which they have personal knowledge, including observable symptoms of difficulty breathing and visiting someone in the hospital. See 38 C.F.R. § 3.159(a)(2) (2017); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that competent lay evidence requires facts perceived through the use of the five senses). Lay evidence is also competent and sufficient to establish a diagnosis of a condition when the layperson is reporting a contemporaneous medical diagnosis, such as the statements reporting that the Veteran had been hospitalized and treated for pneumonia when in service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly, the Board finds that the second Holton element has been met. With respect to the crucial third Holton element, medical nexus between the in-service disease or injury and the current disability, the Board notes that the question presented in this case, i.e., the relationship, if any, between the Veteran's current asthma and his experience of walking guard duty in frigid temperatures while breathing coal ash and subsequent pneumonia, is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Veteran presented a May 2011 letter from his primary doctor, Dr. M.S.P., to his pulmonologist, Dr. A.T., in which Dr. M.S.P. requested Dr. A.T.'s assistance in substantiating the Veteran's disability compensation claims. Dr. M.S.P. wrote that he had known the Veteran prior to their professional association and that he had been the Veteran's primary doctor since 1984. Dr. M.S.P. noted that the two initial doctors who had treated the Veteran were either dead or retired, and records were not available as well as the Veteran's hospitalizations for eight and eleven days due to severe episodes of breathing problems. Dr. M.S.P. recounted his understanding of the Veteran's episode of walking guard duty while in service and subsequent hospitalization for pneumonia. It was stated: "It is my professional opinion that this incident precipitated his scarred and diseased lungs and the related asthma." It was requested that Dr. A.T. provide a medical opinion on the Veteran. In a letter from Dr. A.T. dated October 2011 and received by VA in August 2013, it was stated that the Veteran had been a patient since December 2011, initially being sent for evaluation of severe asthma. It was noted that the Veteran had a long-standing history of asthma that had been difficult to control. Dr. A.T. stated that the Veteran related the details of his walking guard duty in January 1967 and being hospitalized for pneumonia. It was stated that the Veteran described onset of asthma with classic environmental triggers which has persisted over the years and manifested in profound shortness of breath, coughing, and bronchospasm. Dr. A.T. opined: "While irritant induced asthma can occur, it is more usually described with chemical exposure than temperature changes alone. However, it is certainly possible that this prolonged cold exposure contributed to bronchospasm and subsequent pneumonia. This extreme trigger certainly could have accelerated a diagnosis of asthma at that time." It was stated, further: "There is certainly a temporal association with this cold exposure in 1967 and asthma onset." A copy of Dr. A.T.'s letter was received by VA in November 2014 along with copies of hospitalization records from August 1987 for care provided by Dr. H.B.P. The records show that the Veteran had been hospitalized for status asthmaticus. It was noted: "Interestingly enough this patient only began having trouble with wheezing within the past five years. He is not a cigarette abuser. He has had some trouble with seasonal allergies but no history of asthma as a child." It was noted that his past medical history revealed an admission in 1983 for asthma for approximately ten days and that he was hospitalized in 1967 for pneumonia. In August 2016, the Veteran was afforded a VA examination for respiratory conditions. The examiner opined that it was less likely than not that the Veteran's asthma incurred in or was caused by the Veteran's experience of walking guard duty and subsequent development of pneumonia. The examiner rationalized: "He had pneumonia in 1966 in the left lower lobe and was treated with oral medication for 7 days while in the hospital. He said that he did not develop problems with asthma for several years after that. It is less likely than not that the asthma was triggered by the mild case of pneumonia several years prior." In September 2016, Dr. M.S.P. wrote another letter on behalf of the Veteran. It was related that the Veteran was well-known and it was noted that the Veteran experienced a severe case of pneumonia in 1967 while on active duty. It was noted that prior to service the Veteran had excellent health, playing high school football and on other athletic teams without evidence of respiratory distress. It was noted that since the pulmonary infection in 1967, the Veteran developed chronic asthma with frequent bouts of respiratory distress with infection and fever. Dr. M.S.P. stated: "It is my feeling that since his initial injury in 1967, while working with the [state] National Guard, his respiratory status has not improved and is worsening. . . . He had not had any problems prior to 1967 at which time his infection occurred while on duty while working in sub-freezing temperatures. He also now has marked airway sensitivity to particulate matter in the inhalation of dust and pollutants." The Board has the responsibility of weighing conflicting medical opinions and may place greater weight on one physician's opinion over another depending upon factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-04 (2008); Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (stating that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). Here, the Board places greater probative weight on the medical opinions of Drs. M.S.P. and A.T. over the opinion of the VA examiner. The Veteran's treating physicians, including Dr. H.B.P. during the 1980s, have all noted the Veteran's in-service pneumonia and considered it significant in reporting his medical history of asthma. The Veteran's reporting of events essentially has been consistent regardless of whether it was being told for the purpose of treatment or to claim disability compensation, including the detail that while walking guard duty he was exposed to both cold as well as inhaled coal ash for a prolonged period of time. See Harvey v. Brown, 6 Vet. App. 390, 393-94 (1994) (drawing a credibility distinction between statements made for the purpose of receiving treatment and those made for the purpose of seeking compensation). In the treating physicians' opinions, this combination of exposure was noted and reinforces the Veteran's testimony concerning his sensitivity to smoke, breathing particulate matter, and the soap aisle at the supermarket. The VA examiner's opinion, on the other hand, is not supported by the record or by a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-01 (2008) (setting out factors for determining the adequacy of a medical opinion). The examiner stated that the Veteran said that he did not develop problems with asthma for several years after his 1967 pneumonia. The consistent evidence of record, however, is that the Veteran started having problems rather immediately as evidenced by inability to engage in the same level of sports as previously, that he self-medicated for a number of years with over-the-counter Bronkaid Mist, and that it was during hospitalizations in the 1980s when he was properly diagnosed with asthma and started a medically-managed course of care for same. Additionally, the examiner did not address the Veteran's simultaneous exposure to coal ash during a prolonged period of exposure to extreme cold and the resultant tissue scarring referred to by Dr. M.S.P. Based upon the foregoing, the Board finds that the preponderance of the evidence shows that the Veteran has a present disability of asthma that is proximately due to his prolonged exposure to cold and coal ash while on active duty; and therefore, service connection for asthma on a direct basis is warranted. ORDER Service connection for asthma is granted. REMAND The Veteran contends that he has COPD that should be service-connected due to his prolonged exposure to extreme cold and coal ash while on active duty. Based on the evidence of record, however, it is unclear whether the Veteran has a current disability of COPD. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2017). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4) (2017); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). In November 2014, the Veteran testified that he has COPD, and he has made other statements that he has COPD. Statements from the Veteran's treating physicians for asthma, Drs. M.S.P. and A.T., however, do not indicate that the Veteran has been diagnosed or been treated for COPD. While the claims file contains statements from these physicians and some historical medical records, it does not contain complete records for course of care. In August 2016, the Veteran was afforded a VA examination for respiratory conditions, and the report shows COPD as another pulmonary condition but the examiner did not identify COPD as a diagnosis. In the corresponding section for a description of other listed pulmonary conditions, the examiner left it blank. The Veteran is competent to report his symptoms and any diagnoses that he has been told by a physician. Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As discussed above, there is competent, credible, and probative evidence of record that while on active duty the Veteran experienced a prolonged period of exposure to cold temperatures and coal ash after which he was hospitalized for treatment of pneumonia. The evidence of record shows that the Veteran has had breathing problems since the in-service event, and the Board has found that service connection for his current disability of asthma is warranted. The question is whether the Veteran also has COPD that also should be service-connected. The Board is prohibited from resolving this medical question, and therefore, a VA examination is warranted and comprehensive treatment records should be obtained. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and afford him the opportunity to identify by name, address, and dates of treatment or examination of all relevant medical records, including for care provided at VA Medical Centers. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of all diagnosed respiratory disorders other than asthma. The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must first identify all currently diagnosed respiratory disorders other than asthma. If COPD is not diagnosed, an explanation must be provided. Then, the examiner must provide an opinion, in light of the examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that each diagnosed disorder was caused or aggravated by the Veteran's military service. The examiner must specifically address the evidence of record that while on active duty the Veteran was exposed for a prolonged period of time to extreme cold temperatures and coal ash that resulted in pneumonia requiring hospitalization. In providing this opinion, the examiner must acknowledge and discuss any lay evidence of a chronicity of symptoms. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must provide a fully reasoned explanation. A complete rationale must be offered for all opinions expressed, including a discussion of the evidence and medical principles that led to the conclusions reached. In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case, e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc. If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs