Citation Nr: 18151287 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 10-28 273 DATE: November 19, 2018 ORDER Entitlement to service connection for a lung disability, to include asthma, chronic obstructive pulmonary disease (COPD), and asbestosis, is denied. REMANDED The issue of entitlement to service connection for left shoulder impingement, claimed as left shoulder condition, is remanded. FINDING OF FACT A chronic lung disability did not have its onset during active service and is not otherwise causally related to active service, including any exposure to volcanic ash while stationed in the Philippine Islands. CONCLUSION OF LAW The criteria for service connection for a chronic lung disability, diagnosed as COPD, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty from October 1984 to November 1994. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The issue of entitlement to service connection for a lung disability arose from a May 2010 rating decision. Following the Board’s April 2016 denial of service connection for such, the United States Court of Appeals for Veterans Claims (Court) issued an order granting a November 2016 Joint Motion for Partial Remand (JMR). The issue of entitlement to service connection for left shoulder impingement arose from an August 2013 rating decision. The Board observes that service connection for left upper extremity radiculopathy is already in effect. The Board most recently remanded these issues in March 2017. A Supplemental Statement of the Case (SSOC) was issued in August 2018. A September 2017 rating decision, inter alia, denied service connection for a left knee disability and a right foot disability. A timely Notice of Disagreement (NOD) with respect to these two issues was received in September 2017. Inasmuch as the RO acknowledged receipt of the NOD, a remand of the issues pursuant to Manlincon v. West, 12 Vet. App. 238 (1999) is not necessary. Service Connection for Lung Disability Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. “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 between the present disability and the disease or injury incurred or aggravated during service’—the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service treatment records indicate that the appellant’s June 1984 enlistment examination was negative for any complaints or findings of a lung disorder. A November 1988 Report of Medical Examination states that lungs and chest were normal. In April 1993, he was seen for evaluation of a cough which he had had for the past three weeks; he noted that he now had yellow/green sputum and the cough was keeping him up at night. It was noted that his wife had bronchitis. On examination, the lungs were reported to be clear. However, the assessment was bronchitis. In December 1993, the appellant was seen for complaints of a cough, cold, and congestion; he noted that he had had those symptoms for the past 72 hours. The lungs were clear without any rales, rhonchi, or wheezing. The assessment was upper respiratory infection. His May 1994 separation examination was negative for any complaints, observations, treatment, or diagnoses regarding the lungs. Indeed, examination of the lungs and chest was essentially normal. An August 1994 chest x-ray was reported to be normal. Service treatment records also indicate that the appellant consistently reported being a nonsmoker. December 1994 imaging studies of the chest were performed. The appellant had a history of shortness of breath and intermittent wheezing associated with left anterior chest pain, suggestive of chest wall pain. Imaging studies revealed limited inspiratory effort. The suggestion of slight increased markings in the right hilar region may be secondary to the decreased inspiration. No definite infiltrate was seen. Asymmetrical pleural thickening was noted, more prominent on the left side. Pulmonary function testing (PFT) was ordered by a December 1994 VA examiner. There was a finding of combined pattern of restrictive and obstructive lung disease. There was no response to beta-adrenergic spray. The report states that the appellant smoked cigarettes for 10 years, two units per day, but zero pack years. In March 1995 addendum, a VA examiner indicated that, following the completion of the respiratory examination, PFT, chest X-ray, EKG and complete laboratory testing, the pertinent diagnosis was chest wall pain of uncertain etiology. There was no evidence of active lung disease. The examiner also reported a diagnosis of pleural thickening of uncertain etiology. Private treatment reports from Southwest Orlando Family Medicine, including those from Dr. P.G., are of record. These records show that the appellant received clinical attention and treatment for several disabilities, including low back pain and a respiratory disorder. A June 2004 treatment note reflects an assessment of bronchitis. Another treatment note, dated in December 2007, reflects an assessment of acute bronchitis. These records indicate that the appellant reported being a non-smoker on multiple occasions. During a primary care visit in June 2009 at a VA facility, the appellant complained of neck stiffness. A system review revealed no shortness of breath, no wheezing, cough or sputum production. The chest was symmetrical with full expansion; clear to percussion and auscultation, with no wheezing or crackles. The assessment was neck muscle strain, and possible back strain. An August 2009 chest x-ray revealed localized areas of mild pleural thickening. There were no acute lung findings or signs of tuberculosis or prior granulomatous disease. In a Statement in Support of Claim received in October 2009, the appellant contended that his current lung disability was due to exposure to volcanic ash while serving in the Philippine Islands during the eruption in June 1993. An October 2009 imaging study of the chest was performed at a VA Medical Center. The impression was no interval change from August 2009, but it was unclear whether the prominence of the central pulmonary vessels was arterial or venous. It was noted that arterial prominence was seen in pulmonary hypertension, commonly related to COPD. There were also stable areas of mild bilateral pleural thickening. Received in March 2010 was a medical statement from Dr. P.G., dated in February 2010, indicating that he had reviewed the appellant’s military records as well as his treatment records; and, it was his opinion that the appellant’s chest pains and pulmonary conditions started while he served in the Air Force. Dr. P.G. also stated that “it is likely that his pulmonary findings (pleural thickening) were brought about by exposure to volcanic ash during the eruption of Mount Pinatubo while he was stationed at Clark Air Force Base.” A June 2010 clinical note from Dr. P.G. at Southwest Orlando Family Medicine states that the appellant was diagnosed with COPD. The appellant was afforded a VA examination for respiratory diseases in May 2012. The claims file was reviewed. He reported being exposed to volcanic ash while serving in the Philippine Islands from June 1993 to November 1993. It was noted that he was seen for acute bronchitis in 1993 and given antibiotics but that there was no indication that the appellant was treated for a chronic lung condition while in the military. The examiner indicated that the appellant was noted to be a smoker in 1994. The VA examiner diagnosed the appellant with COPD. The examiner did not diagnose interstitial lung disease, which the examination report explained included, but was not limited to, asbestosis. The examiner opined that the appellant’s COPD was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the appellant was reportedly exposed to volcanic ash from June 1993 to November 1993. He was seen for bronchitis in November 1993 and complained of intermittent wheezing and shortness of breath associated with chest pain but workup, including PFT, was unremarkable for etiology of his symptoms. His chest x-ray, performed in 1994, was normal, except for asymmetrical pleural thickening noted, more prominent on the left than on the right. The examiner noted that the significance of pleural thickening was unclear but most likely it is not related to his current diagnosis of COPD. The examiner further noted that the PFTs done in 1994 looked normal as noted by his FEV1/FVC values; it did not indicate on this PFT that the appellant was a smoker. The appellant was diagnosed with COPD and started on inhalers many years after leaving the military. In its February 2014 remand, the Board noted that the May 2012 VA examiner stated that 1994 pulmonary function tests included a notation that the appellant was a smoker. The Board ordered that the appellant be afforded a new examination, as it was unable to find a notation of the appellant being a smoker in the record at that time. The appellant was afforded a VA examination in April 2014. The claims file was reviewed. The appellant reported that he has experienced trouble breathing and coughing since his service and that he complained about it all the time. He was diagnosed with COPD. Such had been diagnosed in 2012 following a chest x-ray in March 2012 due to complaints of shortness of breath and dyspnea. He denied ever being a smoker, although the examiner noted that service and VA medical records indicated a history of smoking. Notably, he had never been diagnosed with asthma. The examiner opined that the COPD was less likely than not incurred in or caused by the appellant’s active service. The examiner indicated that the appellant reported a history of exposure to volcanic ash from June 1993 to November 1993. The examiner noted that service treatment records showed evidence of one episode of acute bronchitis in 1993. It was explained that acute bronchitis is an acute illness which usually resolves without residuals. The examiner also noted that the appellant had intermittent episodes of respiratory symptoms with unremarkable evaluation, including normal PFTs, chest x-rays in 1994, which showed bilateral pleural thickening but were otherwise normal. The examiner explained that the symptoms of COPD and establishing the diagnosis occurred many years after the appellant separated from the military; therefore, it was her opinion that the current diagnosis of COPD was less likely as not related to his military service. She added that the pleural thickenings are not related to the current diagnosis of COPD. In September 2014, the appellant reported that he did not smoke, nor had he ever smoked. He again contended that he was exposed to “toxins” from volcanic ash from June 1993 to November 1993. He also reported that he was exposed to “toxins” while operating jackhammers at Fairchild Air Force Base. A December 2016 clinical note from Dr. P.G. at Southwest Orlando Family Medicine states that the assessment included COPD. He complained of cough and wheezing, which began three weeks prior. The December 2016 JMR states that “the April 2014 examiner’s opinion that the pleural thickening was not related to the COPD was not supported by rationale.” Thus, an addendum medical opinion from the April 2014 examiner was obtained in May 2018. The claims file was reviewed. The VA physician explained that pleural plaques are deposits of hyalinized collagen fibers in the parietal pleura. Such are associated with, and indicative of, history of previous asbestos exposure. These typically become visible years after the inhalation of asbestos fibers. The VA physician explained that there is no objective evidence in medical literature confirming that pleural plaques cause COPD. Analysis Upon weighing the evidence, the Board finds that the preponderance of the evidence is against the appellant having a current lung disability, diagnosed as COPD, which was incurred in or is otherwise causally related to his active service. Service treatment records are negative for any findings of a chronic lung disability. While appellant was seen and treated for bronchitis in April 1993, his separation examination in May 1994 was negative for any complaints or findings of a pulmonary disease; and an August 1994 a chest x-ray was negative. While the appellant has a current diagnosis of COPD, there is no medical evidence of record that COPD was diagnosed prior to June 2010, approximately 16 years after separation from service. In addition, the preponderance of the competent evidence of record shows that the appellant’s currently-diagnosed COPD is not related to service. The majority of the medical opinions of record addressing the etiology of the appellant’s currently diagnosed COPD, including the May 2012 VA examination, and the April 2014 VA medical opinion, are in agreement that the COPD was not caused by service, including his claimed exposure to volcanic ash. Significantly, following VA examination in May 2012, the examiner concluded that appellant’s COPD was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that the appellant was seen for bronchitis in November 1993 and complained of intermittent wheezing and shortness of breath associated with chest pain but workup, including PFT was unremarkable for etiology of his symptoms. His chest x-ray, performed in 1994, was normal, except for asymmetrical pleural thickening noted, more prominent on the left than on the right. The examiner noted that the significance of pleural thickening was unclear but most likely it is not related to his current diagnosis of COPD. The examiner further noted that the PFTs done in 1994 looked normal as noted by his FEV1/FVC values; it did not indicate on this PFT that the appellant was a smoker. The appellant was diagnosed with COPD and started on inhalers many years after leaving the military. In April 2014, a VA examiner concluded that the symptoms of COPD and establishment of the diagnosis occurred many years after the appellant separated from the military; therefore, it was her opinion that the current diagnosis of COPD was less likely as not related to his military service. She explained that at acute bronchitis is an acute illness which usually resolves without residuals and observed that the appellant had intermittent episodes of respiratory symptoms with unremarkable evaluation, including normal PFTs, chest x-rays in 1994, which showed bilateral pleural thickening but were otherwise normal. She added that the pleural thickenings are not related to the current diagnosis of COPD. This VA examiner provided an addendum in May 2018 which directly addressed whether pleural thickenings could be related to COPD. She explained that pleural plaques are deposits of hyalinized collagen fibers in the parietal pleura. Such are associated with, and indicative of, history of previous asbestos exposure. These typically become visible years after the inhalation of asbestos fibers. The VA physician explained that there is no objective evidence in medical literature confirming that pleural plaques cause COPD. The Board finds the VA examiner’s opinion highly probative because it was based on a review of the claims file, consideration of the relevant medical history, and the opinion was accompanied by a detailed rationale. There is no competent medical evidence to the contrary as to whether pleural thickening is related to the appellant’s current COPD. The record contains no medical opinion countering the findings in the May 2018 addendum opinion concerning a relationship between pleural thickening and COPD. Thus, this May 2018 VA medical opinion stands unchallenged as medical evidence on the crucial question of whether pleural thickening can cause COPD. The only medical evidence of record which provides an opinion relating the appellant’s lung disorder, not even specifically noted as COPD, to military service is a medical statement from Dr. P.G., dated in February 2010, wherein he stated that it is likely that the appellant’s pulmonary findings (pleural thickening) were brought about by exposure to volcanic ash during the eruption of Mt. Pinatubo while he was stationed at Clark Air Force Base. However, the Board finds this opinion to be of limited probative value because it is conclusory in nature and unsupported by rationale. Indeed, “most of the probative value of a medical opinion comes from its reasoning. Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service connection or rating context if it contains only data and conclusions.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has considered the appellant’s assertions that he suffers from a lung disorder related to military service, to include exposure to volcanic ash. He is competent to report symptoms and observations because this requires only personal knowledge as it comes through an individual’s senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The appellant in this case is not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the appellant in this case, who has not been shown by the evidence of record to have medical training or skills. The Board finds the VA examination reports to be of greater probative weight than the appellant’s lay assertions. The Board also observes that the appellant has contended that he is not, nor has he been, a smoker. Despite notations by some clinicians indicating that he was a smoker, the Board has reviewed the evidence of record and observes that he consistently denied being a smoker while on active duty and following separation. The December 1994 PFT report, discussed supra, appears to be the only indication that the appellant was a smoker. The issue of whether the appellant was a smoker is not determinative in this matter, however. The VA medical opinions of record were based on clinical examinations of the appellant, review of the claims file, consideration of the relevant medical history, and the opinions were accompanied by a detailed rationale. Such etiological opinions were not based upon the appellant being a smoker. Thus, there is no prejudice to the appellant in relying on them. In the September 2018 informal hearing presentation, the appellant’s representative argues that, based upon the May 2018 VA examiner’s explanation that pleural plaques are associated and indicative of a history of asbestos exposure, a new VA examination is warranted to determine whether the appellant has “a service-connected lung condition, to include asbestosis.” The appellant has been afforded VA examinations in May 2012 and April 2014, in which he was diagnosed only with COPD. While pleural thickening has been observed and noted by clinicians, asbestosis was not diagnosed by any clinician, including Dr. P.G. Indeed, there is no competent evidence in the claims file of a diagnosis of asbestosis. Thus, the Board finds that another examination to determine whether the appellant has asbestosis is not necessary to decide the claim. While the November 2016 JMR noted that the April 2014 medical opinion was inadequate, there is no indication, nor is it contended, that the examination conducted was inadequate. Asbestosis was not diagnosed during such VA examination. Indeed, there is no indication, nor is it contended, that the appellant was exposed to asbestos while on active duty. The appellant and his representative have had ample opportunity to submit evidence of a diagnosis of asbestosis, but have not done so. Indeed, the recently-obtained records from SW Orlando are negative for such a diagnosis. Rather, COPD is the appellant’s diagnosed lung disability. Also in September 2018 informal hearing presentation, the representative states that “[w]e note that [the appellant] has an undiagnosed lung condition that is currently non-service connected. See Rating Decision Codesheet dated 1 Sep 2017.” The Board has reviewed such Rating Decision Codesheet and observes that under the “Not Service Connected/Not Subject to Compensation” section, “Lung Condition” is listed as “Not Service Connected, No Diagnosis,” with an original date of denial of May 6, 2010. This is not a concession that the appellant has an undiagnosed lung disability; rather, this is noting the reason the appellant’s claim of service connection was first denied. Following issuance of the May 2010 rating decision, it was established that the appellant had a diagnosed lung disability of COPD. In sum, the evidence preponderates against the claim. As such, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND A remand is warranted for additional medical inquiry into the service connection claim for left shoulder disability. Pursuant to the March 2017 remand, the Veteran underwent VA examination into this claim in May 2018. In the report, the examiner commented on whether left shoulder disability was secondary to service-connected cervical spine strain or related radiculopathy. But the examiner did not address the issue of direct service connection and whether left shoulder disability related to service. See Stegall v. West, 11 Vet. App. 268 (1998). An addendum report should be sought on remand. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from the VA examiner who conducted the May 2018 shoulder examination (or from another appropriate examiner) as to the nature and etiology of all left shoulder disabilities present, aside from the already service-connected left upper extremity radiculopathy. The examiner should review the claims file and answer the following questions. (a). What are the Veteran’s current left shoulder disabilities (other than left upper extremity radiculopathy)? (b). Is it at least as likely as not (i.e., 50 percent or greater probability) that any left shoulder disability, aside from radiculopathy, was incurred during active service, or was a result of an in-service injury or disease, to include the Veteran’s competent reports of performing “heavy physical activities.” Consider that the Veteran has reported that he began to experience problems with his left shoulder while on active duty. He denied a history of acute direct or indirect injury, but related the pain to heavy physical activities. He stated that he has had problems for a while, but never sought medical evaluation. The appellant denied history of acute left shoulder injury prior to the October 2017 diagnosis of rotator cuff tear. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The appellant should not be scheduled for an examination unless the examiner providing the requested opinion deems it necessary. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel