Citation Nr: 18153417 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 11-29 525 DATE: November 27, 2018 ORDER New and material evidence having been submitted, the claim for entitlement to service connection for a lung disability, claimed as fibrosing mediastinitis, is reopened and, to that extent only, the appeal is granted. Service connection for a lung disability, including fibrosing mediastinitis, is denied. FINDINGS OF FACT 1. The claim for service connection for a lung disability, claimed as fibrosing mediastinitis, was previously denied in a December 2001 rating decision; the Veteran appealed the decision; the agency of original jurisdiction (AOJ) issued a statement of the case (SOC) in November 2002; and the Veteran did not perfect an appeal of the decision to the Board. 2. The additional evidence received since the December 2001 rating decision became final relates to an unestablished fact necessary to substantiate the claim. 3. Clear and unmistakable evidence shows both that the Veteran’s fibrosing mediastinitis existed prior to service and that such fibrosing mediastinitis was not aggravated by service. CONCLUSIONS OF LAW 1. The December 2001 rating decision denying service connection for a lung disability, claimed as fibrosing mediastinitis, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The additional evidence presented since the December 2001 rating decision is new and material, and the claim for service connection for a lung disability, claimed as fibrosing mediastinitis, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for a lung disability, including fibrosing mediastinitis, have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5107; 38 C.F.R. §§ 3.303, 3.304(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 11, 1980, to June 6, 1980. This appeal is before the Board of Veterans’ Appeals (Board) from a January 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence Pertinent procedural regulations provide that "[n]othing in [38 U.S.C. § 5103A] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C. § 5108]." 38 U.S.C. § 5103A(f). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). While in a September 2011 SOC, the AOJ substantively addressed the Veteran’s service connection claims on the merits, it is nonetheless the Board's jurisdictional responsibility to consider whether it is proper for a claim to be reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The AOJ denied service connection for a lung disability, claimed as fibrosing mediastinitis, in a December 2001 rating decision. The Veteran filed a notice of disagreement, and the AOJ issued the Veteran an SOC on the issue in November 2002. The Veteran did not subsequently file a time substantive appeal, and therefore did not perfect an appeal to the Board, and the December 2001 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The basis of the prior final denial was the AOJ’s finding that the evidence demonstrated that the Veteran’s lung disability, including fibrosing mediastinitis, existed prior to service and was not aggravated by service. Evidence obtained since that decision became final includes a May 2016 statement from the Veteran’s treating VA physician, Dr. G.L.S., stating the opinion that, regarding her current lung disability, the Veteran’s “physical training exacerbated her symptoms and condition.” Without addressing the merits of this evidence, the Board finds that it addresses the issue of whether a current a lung disability, including fibrosing mediastinitis, was or was not aggravated in service. See Justus v. Principi, 3 Vet. App. 510, 512-513 (1992); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Shade v. Shinseki, 24 Vet. App. 110 (2010). Thus, this evidence is both "new," as it has not previously been considered by VA, and "material," as it raises a reasonable possibility of substantiating the Veteran's service connection claim. The Board thus finds that new and material evidence has been submitted to reopen the Veteran’s claim for service connection for a lung disability, claimed as fibrosing mediastinitis. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111, 1132; 38 C.F.R. § 3.304(b). To rebut the presumption of soundness, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service; 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. See VAOPGCPREC 3-2003 (July 16, 2003); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service treatment records reflect that no lung or respiratory problems were noted on November 1979 entrance examination. In March 1980, the Veteran began complaining of swelling in the extremities, difficulty catching her breath while running, and chest pain. Chest X-rays revealed anterior mediastinal mass, noted to have existed prior to service. Further March 1980 chest X-rays revealed a linear, horizontally oriented density seen in the right base, which was noted to possibly represent an acute or chronic change, i.e., subsegmental atelectasis vs. scarring, secondary to old inflammatory disease. Some fullness of the upper mediastinum on the right was also noted. The faint suggestion of calcified nodes was seen through this same region, which were indicative of old, healed granulomatous disease. The widening of the superior mediastinum on the right was noted possibly to be secondary to old inflammatory disease, but it was noted that other possibilities could include poststenotic dilatation of the ascending aorta in one with aortic stenosis. The Veteran was discharged due to preexisting disability, assessed as not aggravated in service. Following service, the Veteran has received extensive treatment for diagnosed fibrosing mediastinitis with multiple pulmonary nodules in the right lower lobe and asthma. As noted in a February 1993 private treatment record, the March 1980 in-service X-ray findings led to mediastinoscopy that revealed a node with caseating necrosis consistent with reactive hyperplasia, which was negative for acid fast bacilli and fungi. According to that February 1993 record, the Veteran remained relatively asymptomatic until June 1990, when she received a routine chest X-ray for a new job, which revealed findings similar to those of the in-service chest X-ray. Treatment has included two right thoracotomies in February 1993 and October 1999, with resection of part of right lower lobe and thoracic lymphadenectomy, and right intrapericardial pneumonectomy in January 2005. A May 2016 statement from the Veteran’s treating VA physician, Dr. G.L.S., indicates that the Veteran is followed for respiratory failure secondary to a pneumonectomy due to a mediastinal mass with encroachment of a bronchus. The physician stated that, “in [his] opinion, physical training exacerbated her symptoms and condition.” In this case, the Veteran’s fibrosing mediastinitis—not noted prior to service—manifested in service. She is thus presumed to have been in sound condition at entry to service with respect to such lung disorder. However, for the reasons discussed below, the record reflects clear and unmistakable evidence both that the Veteran’s fibrosing mediastinitis existed prior to service and that such fibrosing mediastinitis was not aggravated by service. The most probative medical evidence in this case is the June 2017 and July 2018 opinions of a Veterans Health Administration (VHA) physician, a pulmonologist. After reviewing the record and acknowledging the facts, as described above, including the pertinent service and post-service treatment records, and the May 2016 statement from Dr. G.L.S., the VHA physician opined both that 1) the record did demonstrate by clear and unmistakable (obvious and manifest) evidence that the Veteran’s mediastinal lung disorder existed prior to her period of service; and 2) the record did demonstrate by clear and unmistakable (obvious and manifest) evidence that the Veteran’s such lung disorder was not aggravated by and during such service. While noting careful review of the opinion of Dr. G.L.S., the VHA physician found no merit to the conclusion expressed in the statement and found it to be unsubstantiated by the literature. The VHA physician provided a very thorough explanation for his opinion, including a thorough discussion of fibrosing mediastinitis, with extensive citation and reference to pertinent medical authority and 36 supporting references noted. Citing the in-service records, including X-ray evidence, the VHA physician noted the presence of an anterior mediastinal mass with calcifications in March 1980. He stated that, pathophysiologically, the presence of calcification in a mass, such as a mediastinal mass, indicates a longstanding and chronic process; with the exception of teratoma, where calcification can occur at the time of birth, he could not think of any other disease that would show calcification in 24 days. Furthermore, he stated that the literature review indicated that the course, progress, and pathogenesis of fibrosing mediastinitis taken in the Veteran was 100 percent consistent with the course of the disease described in the medical literature. He noted that patients with the developing phase of fibrosing mediastinitis have a subtle asymptomatic period during which they slowly and progressively develop extensive fibrosis around blood vasculature in the mediastinum which causes constriction of the superior vena cava and early pulmonary hypertension which initially only exhibits as mild dyspnea on exertion, but following post exertion rest for a few minutes patients return to baseline. He further stated that no specific data in the literature suggest that a few months of service or any other equivalent exertion-related activities have causative or deleterious effect in the natural course of fibrosing mediastinitis. The Board finds that clear and unmistakable evidence shows that the Veteran’s fibrosing mediastinitis preexisted her period of service from February 11 to June 6, 1980. In addition to the notations of such in service, such was the express opinion of the VHA examining physician, who supported this opinion with fact that the presence of calcification in a mediastinal mass indicates a longstanding and chronic process, and such a calcification would not develop in just 24 days; the presence of an anterior mediastinal mass with calcifications in March 1980 reflected that such mass had existed prior to service. There is, moreover, no competent evidence suggesting otherwise—i.e., that the Veteran’s mediastinitis, first shown on March 1980 X-ray, did not exist prior to her February 11, 1980, entry into service. The Board further finds that clear and unmistakable evidence demonstrates that the Veteran’s preexisting fibrosing mediastinitis was not aggravated by her February 11 to June 6, 1980, service. Again, the VHA examiner’s opinion was expressly that the record did demonstrate by clear and unmistakable (obvious and manifest) evidence that the Veteran’s such lung disorder was not aggravated by and during such service. This opinion was supported by literature review indicating that the course, progress, and pathogenesis of fibrosing mediastinitis taken in the Veteran was 100 percent consistent with the course of the disease described in the medical literature, and that nothing in the literature suggested that a few months of service or any other equivalent exertion-related activities have causative or deleterious effect in the natural course of fibrosing mediastinitis. Again, the VHA physician provided a very thorough explanation for his opinion, including a thorough discussion of fibrosing mediastinitis, with extensive citation and reference to pertinent medical authority. Given such thorough review and discussion of the both the recorded facts in this case and medical authority and literature regarding the Veteran’s lung disorder and its nature and progression; his unequivocal opinions; his clear, thorough, and well-explained rationale; and his expertise as a pulmonologist, the Board finds the VHA examining physician’s opinions persuasive in this case. The Board notes statements from the Veteran’s physicians, submitted by her in support of her claim. In addition to the May 2016 statement from the Veteran’s treating VA physician, Dr. G.L.S., noted above, a September 2018 statement from another treating VA physician, Dr. J.H., indicates that the Veteran was followed for respiratory insufficiency secondary to a previous right pneumonectomy due to fibrosing mediastinitis. That VA physician stated that he thought “that it is more likely than not that physical activity in basic training exacerbated her symptoms of shortness of breath.” However, neither physician provided any explanation or rationale for his opinion or stated what, if any, records had been reviewed in making his assessment. Furthermore, neither physician indicated whether “exacerbated” meant permanently aggravated the Veteran’s lung disorder or a temporary exacerbation of symptoms. In this regard, Dr. J.H.’s opinion that “physical activity in basic training exacerbated her symptoms of shortness of breath” is not necessarily inconsistent with the opinion of the VHA examiner in June 2017 and July 2018, which acknowledged that the shortness of breath was a symptom brought on by physical activity during service; Dr. J.H.’s opinion does not, however, speak to whether the Veteran’s underlying disease or medical disorder was aggravated or worsened by activity in service. Thus, the Board finds the opinions to be of very little probative value, and to be heavily outweighed by the opinions of the VHA physician in June 2017 and July 2018. The Board also recognizes the Veteran’s assertions, as reflected in both a September 2018 written statement and during her April 2016 hearing before the Board. She asserts that she did not have any breathing or lung problems or symptoms until service, and that her physical activity in hot temperatures during service aggravated the progression of her lung condition. She further asserts that she did not return to baseline following the manifestation of her symptoms, and that she began experiencing the same symptoms following discharge and eventually required three surgeries for her lung condition. However, as discussed above, while the record reflects that the Veteran did initially manifest symptoms of her fibrosing mediastinitis in service, the underlying condition causing such symptoms has clearly and unmistakably been shown to have preexisted service by the medical evidence. Also, while the Veteran might feel that her activity in service resulted in an aggravation of the progression of her lung condition, she is not competent to make this medical determination. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Again, in this regard, the most persuasive competent and probative medical evidence—specifically the opinion of the VHA pulmonologist—suggests that it clearly did not. Regarding her suggestion that she did not return to baseline following the manifestation of her symptoms, again, after reviewing the record extensively the VHA physician determined that she had, that her fibrosing mediastinitis progressed exactly as it would be expected to regardless of service, and that physical activity during service would not have affected this progression in any way. The VHA physician’s opinion is consistent with the record; while service treatment records reflect that the Veteran’s reported symptoms of swelling in the extremities, difficulty catching her breath while running, and chest pain, they do not reflect that such symptoms did not subside with rest or ceasing physical activity. Furthermore, as noted in by her private provider in February 1993, following service, the Veteran remained relatively asymptomatic until June 1990, when she received a routine chest X-ray for a new job, which revealed findings similar to those of the in-service chest X-ray. While the Veteran’s lung disability did progress, and has required extensive treatment, as discussed by the VHA examiner, it has progressed as expected without being affected by the Veteran’s short period of service. Therefore, the Board finds that clear and unmistakable evidence shows both that the Veteran’s fibrosing mediastinitis existed prior to service and that such fibrosing mediastinitis was not aggravated by service. Accordingly, the presumption of soundness has been rebutted in this case, and service connection for a lung disability, including fibrosing mediastinitis, must be denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Andrew Mack, Counsel