Citation Nr: 1805700 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 13-03 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a lung disorder, to include residuals of pneumonia and to include compensation based on 38 U.S.C. § 1151. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD K. Jobe, Associate Counsel INTRODUCTION The Veteran served honorably in the United States Navy from March 1963 to September 1966 and from October 1966 to February 1970. He was the recipient of the Vietnam Service Medal. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2010 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida denying the Veteran's service connection for lung disorder to include residuals of pneumonia. The claim was denied again in a November 2013 Rating Decision, which also granted the Veteran service connection for asbestosis, claimed as lung condition secondary to asbestosis exposure, effective January 13, 2010. The Veteran, with his representative, testified in a video teleconference hearing in March 2016. At this hearing, the Veteran advanced the claim under the theory of 38 U.S.C. § 1151. The case was subsequently remanded by the Board in July 2016 for further evidentiary development. The case has now been returned to the Board for the purpose of appellate review. The Veteran was notified in November 2017 that the Veterans Law Judge who presided at the hearing is no longer employed by the Board. The Veteran was offered the opportunity for a new hearing and had 30 days to respond. Receiving no response, the Veteran's request for a hearing is deemed withdrawn. (CONTINUED ON NEXT PAGE) FINDINGS OF FACT 1. The Veteran underwent a coronary artery bypass in July 2013, performed at a VA facility. This surgery did not result in an additional lung disability. 2. The Veteran's lung disorder, to include residuals of pneumonia, was not incurred, or otherwise aggravated, by his time in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to compensation under 38 U.S.C. § 1151, for a lung disorder, to include residuals of pneumonia, have not been met. 38 U.S.C. § 1151 (2012); 38 C.F.R. §§ 3.361, 17.32 (2017). 2. The criteria for service connection for lung disorder, to include residuals of pneumonia have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (2012); 38 CFR §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA has completed the necessary steps in order to meet its duties to notify and assist in this case. The Veteran has not raised any procedural arguments regarding the notice or assistance provided. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See id at 1381 (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). Finally, the Veteran testified at a Board hearing. The hearing was adequate as the Veterans Law Judge who conducted the hearing explained the issue and identified possible sources of evidence that may have been overlooked. 38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). II. Compensation under 38 U.S.C. § 1151 In November 2009, the Veteran underwent an Agent Orange registration examination. He noted shortness of breath in damp areas, but otherwise presented with no pulmonary or respiratory abnormalities. Emphysema was diagnosed, and the Veteran was advised to quit smoking. In April 2013, medical records reflect that the Veteran was having trouble breathing, and had shortness of breath on exertion. Encounter notes discuss Veteran's history with smoking as well as chewing tobacco, and clinical imaging was ordered. Imaging confirmed suspicions of calcified pleural plaques and apical pleural thickening with underlying changes of coronary obstructive pulmonary disorder (COPD) with emphysematous changes. At this examination, the Veteran also complained of chest pain with moderate exertion. Testing confirmed stable angina over the past year and intermittent claudication in the thighs, hips, and legs. The Veteran gave informed consent to a coronary artery bypass graft (CABG). In June 2013, the CABG was performed. At the time the Veteran was noted to have a 50 plus year history of smoking. Subsequent testing showed complete occlusion of the right coronary artery, 60 percent mild stenosis in the left anterior descending artery, 70 percent stenosis in the first obtuse marginal and 50 percent in the first diagonal section. A pigtail insertion was made and then drained. The Veteran's ejection fraction was 60 percent with no valvular abnormalities. A thoracentesis was performed in July 2013. Following surgery, clinic notes show that there was complicated post-operation recovery due to elevated white blood cell count, right pleural effusion status-post drainage, and elevated liver function tests possibly due to hepatic congestions and some initial sinus tachycardia changes. Respiratory evaluation was conducted following surgery and the Veteran's breath sounds were diminished. An initial x-ray found infiltrate in the chest. However, one week post-operation the lungs were clear and pulse was normal. Compensation under 38 U.S.C. § 1151 is granted for additional disability, or death, if the additional disability or death was not the result of willful misconduct, the actual cause of the additional disability or death was VA hospital care, medical or surgical treatment, or examination, and the proximate cause of the additional disability or death was either carelessness, negligence, lack of proper skill, error in judgment or similar fault, or an event not reasonably foreseeable. 38 U.S.C. § 1151(a); 38 C.F.R. §§ 3.361(c),(d). The existence of additional disability is determined by comparing the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination that forms the basis of the claim for compensation to the Veteran's condition after the care, treatment, or examination has ended. 38 C.F.R. § 3.361(b). However, the mere fact that the Veteran received care, treatment, or examination and has an additional disability does not establish actual causation. Evidence must show that the VA hospital care, medical or surgical treatment, or examination resulted in additional disability or death. 38 C.F.R. § 3.361(c)(1). The proximate cause of disability or death is the action or event that directly caused the disability or death. It must be more than a remote contributing cause. 38 C.F.R. § 3.361(d). The proximate cause is VA carelessness, negligence, lack of proper skill, error in judgment, or examination if VA either failed to exercise the degree of care expected of a reasonable health care provider, or provided hospital care, medical or surgical treatment, or examination without the Veteran's informed consent. 38 C.F.R. §§ 3.361(d)(1), 17.32. Consent may be express (given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b). Whether the proximate cause of additional disability was an event not reasonably foreseeable is determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable, only an event that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with informed consent procedures. See 38 U.S.C. § 1151 (2012); 38 C.F.R.§§ 3.361, 17.32 (2017). The proximate cause of additional disability or death is an event not reasonably foreseeable if a reasonable health care provider would not have considered the event an ordinary risk of the provided treatment. If the additional disability or death was caused by the Veteran's failure to follow properly given medical instructions, then the additional disability or death was not caused by VA hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3). Further, VA hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of the disease or injury for which it was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). The Board remanded this case in July 2016 for an evaluation as to whether the Veteran's lung disorder arose under the provisions of 38 U.S.C. §1151. It was noted that the Veteran contends that the CABG he underwent in June 2013 resulted in a lung disorder or worsening of an existing one. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to compensation under 38 U.S.C. § 1151 for a lung disorder, to include residuals of pneumonia. For historical purposes, the record reflects that the Veteran reported to a physician in November 2009. He noted that he was smoking one to two packs of cigarettes daily (since age 13), and that he had not seen a doctor since the 1970's because he felt fine. At this exam pleural plaques could be seen in the chest. The Veteran had no chronic cough, dyspnea on exertion or wheezing. In January 2010 when being evaluated for vascular disease, the Veteran was noted to have mild obstructive airway disease; however, lung volume and oxygen saturation were normal. In April 2013, a couple of months prior to surgery, some pulmonary functioning tests were conducted showing moderate obstructive ventilatory defect and lung volumes suggested trapping, diffusion capacity was moderately reduced, and the Veteran was being treated with a bronchodilator. The Veteran was diagnosed with COPD and emphysema. Immediately following the Veteran's CABG in June 2013, progress notes document that he reported better breathing. He also stated he felt better overall. Lung volume was decreased on the left side with no rales or bronchi. Two weeks out of surgery the Veteran noted breathing, dyspnea, and fatigue had improved. Still diffuse emphysematous changes were noted. However, the Veteran, despite medical advice, continued smoking. Specifically, the Veteran noted a three pack per day history of smoking up until surgery, and in the two weeks since, he had cut back to two cigarettes a day. In October 2014, lung volumes were normal. However, diffusion was now severely impaired. The Veteran was still largely only medically followed for cardiac issues. In November 2016, the Veteran noted he had cut back to half a pack of cigarettes a day. Again the Veteran was advised to completely abstain from tobacco products. In January 2017, the Veteran submitted to a VA respiratory examination. The Veteran, contrary to prior statements, insisted he only smoked a pack and a half of cigarettes a day and quit the month prior (December 2016). The examiner diagnosed COPD, emphysema and calcified pleural plaques. The examiner opined that the Veteran's 43 years of post-service exposure to construction dust, as well as history of cigarette smoking, are significant reasons for the current respiratory conditions. In April 2017, the Veteran reported no dyspnea or chest pain, but wheezing and shortness of breath with severe exertion, which had been the same for many years. Again no rales or rhonchi were detected in the lungs. In August 2017, a VA examiner reviewed the record, and formulated an opinion as to the 1151 claim. He stated that the Veteran had one lung condition and it was COPD with emphysema, which he writes, was almost certainly due to a 100 pack a year history of cigarette smoking. The examiner asserts that the Veteran had one chest x-ray after his bypass surgery which noted a new infiltrate, but follow-up chest x-rays were silent for any infiltrate. The examiner continued on to state that there was no evidence of any carelessness or negligence by the VA hospital, and the Veteran had not identified any specific deviation from proper care. The Veteran also had not identified any specific lung condition secondary to the pneumonia in 2013. Follow-up chest x-rays and CTs (computed tomography) of the chest have not identified any persistence of the pneumonia, or any lung defect, due to his pneumonia. Here, there is no probative evidence that the Veteran underwent hospital care or medical or surgical treatment that resulted in a lung disability, to include residuals of pneumonia. While VA treatment records confirm that the Veteran has continued COPD with emphysema, there has been no probative evidence presented to suggest that this or any other possible lung defect, was due to fault of VA medical providers. The January and August 2017 VA medical opinions found there was no carelessness, negligence, or fault by VA, and that the only present lung condition can likely be attributed to the Veteran's work history and long history with smoking cigarettes. These opinions have clear conclusions and supporting data, as well as adequate medical explanations. The Court has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). Therefore, the Board accords great probative weight to the January and August 2017 VA examiners' opinions. There is no differing opinion of record. The Board has also considered the statements from the Veteran attributing his lung disorder to VA treatment. However, the evidence of record does not reflect that the Veteran is competent to provide an opinion as to the cause of any additional disability or whether a medical professional acted with a reasonable standard of care or acted with negligence, carelessness, lack of proper skill, error in judgment or fault. An opinion as to the cause of the Veteran's reported disability due to VA treatment would involve an analysis of the medical records on file and knowledge of highly complex medical matters. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). It is not shown that the Veteran is otherwise qualified through specialized education, training or experience to offer an opinion on medical matters. Accordingly, the Board concludes that the probative and persuasive evidence of record reflects that the Veteran does not have an additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination, or due to an event not reasonably foreseeable. Therefore, the claim cannot be granted under the provisions of 38 U.S.C. § 1151. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is inapplicable. 38 U.S.C.A.§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). III. Direct Service Connection The Veteran has also claimed entitlement to service connection for a lung disorder to include residuals of pneumonia on a direct basis. He contends that he incurred such disability during his active military service. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran does not suffer from a current lung disability that manifested during, or as a result of, active military service (in addition to his already service-connected asbestosis). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. Service connection may also be warranted where a service-connected disability caused or worsened the injury. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Board must assess the credibility and weight of all of the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2012); Gilbert, 1 Vet App. at 49. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. With that having been said, the Board finds that the preponderance of the evidence of record demonstrates that the Veteran is not entitled to service connection for a lung disorder in addition to his already service-connected asbestosis on a direct basis. The Veteran's service treatment records show that in May 1963, he was hospitalized for bronchopneumonia. No further complaints or findings of residual respiratory disability were shown throughout the remainder of service through his separation examination in January 1970. Therefore, there is no evidence of a chronic lung disability during active military service. Likewise, there is no evidence of a current lung disability related to active military service separate and distinct from his already service-connected asbestosis. As indicated above, the only respiratory condition, aside from the Veteran's already service-connected asbestosis is COPD with emphysema, most likely resulting from a history of cigarette smoking. There is no competent evidence relating this condition to active military service. As there is no competent evidence of a current lung disorder that is separate and distinct from the already service-connected disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board recognizes that the Veteran believes that he is entitled to service connection for a lung disorder that is separate and distinct from his already service-connected asbestosis. However, as noted in the previous section, the record contains no evidence to suggest that the Veteran has the requisite training or expertise to relate a current disability, such as COPD, to military service decades earlier. Rather, the competent evidence of record relates this condition to decades of cigarette smoking. As such, the Veteran's assertions fail to demonstrate that he suffers from a current lung disability that is separate and distinct from his asbestosis that manifested during, or as a result of, active military service. Based on the lack of evidence of a current disability, the Board finds that a preponderance of the evidence is against the finding of service connection for lung disorder, to include residuals of pneumonia. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The claim of entitlement to service connection for a lung disorder, to include residuals of pneumonia and to include compensation based on 38 U.S.C. § 1151, is denied. ____________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs