Citation Nr: 1807570 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-27 001 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a chronic lung disorder. 2. Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Angeline DeChiara, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from October 1980 to July 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which denied service connection for chronic pneumonia and a mood disorder (claimed as depression). Evidence of the record suggests that the Veteran has been diagnosed with different chronic lung disorders, including chronic obstructive pulmonary disease (COPD) and chronic bronchitis; therefore, the Board will broadly construe the claim for service connection for chronic pneumonia to include these conditions. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (holding that the Board must consider any disability that "may reasonably be encompassed by" the description of the claim and symptoms and other submitted information). In March 2017, the Veteran appeared and testified at a video hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a chronic lung disorder that is etiologically related to a disease, injury, or event in service. 2. The preponderance of the evidence is against finding that the Veteran has an acquired psychiatric disorder that is etiologically related to a disease, injury, or event in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a chronic lung disorder, to include COPD and chronic bronchitis, have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for an acquired psychiatric disability, to include depression, anxiety, and mood disorder, are not met. 38 U.S.C. § 110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Initially, the Board finds that, with respect to the claims discussed herein, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). Additionally, the Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ("[T]he 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). II. Analysis Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). In general, service connection requires the following: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition to direct service connection described above, service connection may be granted on a presumptive basis for certain chronic diseases, including psychoses, by demonstrating a continuity of symptomatology since service, or a diagnosis within the presumptive period after service. 38 U.S.C. § 1112, 113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). The Veteran has not be diagnosed as having any psychoses within his first post-service year, and as discussed below has not shown any evidence of a continuity of symptomatology since service and is therefore not entitled to presumptive service connection. Finally, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). a. Chronic Lung Disorder Here, the Veteran contends that he is entitled to service connection for a chronic lung disorder, claimed as chronic pneumonia. The medical evidence of record shows that the Veteran currently has a diagnosis of COPD and chronic bronchitis, and therefore, a current disability has been shown. Furthermore, service treatment records from the Veteran's period of active service reflect the Veteran reporting symptoms of, and being treated for, pneumonia. Additionally, reports of medical history from the Veteran's period of active service reflect the Veteran reporting shortness of breath, pain or pressure in the chest, and chronic cough. Although there is evidence of record of a current disability and of the Veteran reporting, and being treated for, lung conditions in-service, the Board finds that the evidence of record does not establish that the two are causally related. The Veteran was afforded a VA examination for his respiratory conditions, conducted through a contractor, in May 2013. The Veteran reported that he was exposed to asbestos while performing his military duty as an Operations Specialist on the ship. The Veteran further reported being a heavy smoker for over 30 years. Additionally, the Veteran reported intermittent shortness of breath and dry cough, and indicated that these symptoms were persistent for a long time. The Veteran indicated that he was not receiving medical care or treatment for this condition. Upon examination, the examiner noted bilateral bronchi wheezes and dry cough. The examiner further noted a normal chest X-ray. The examiner provided a diagnosis of COPD and chronic bronchitis. The examiner opined that the Veteran's claimed respiratory condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. However, the examiner failed to provide a rationale for this opinion. Due to the lack of reasoning in the opinion of the May 2013 examiner, the RO sent the Veteran's claims file to another physician for a new opinion in June 2014. Upon review of the Veteran's claims file and his May 2013 examination, the reviewing physician opined that it is less likely than not that the Veteran's current respiratory condition is due to the respiratory complaints he was treated for in service. The physician reasoned that there is no medical evidence to establish a chronic condition having its onset in service. The reviewing physician noted that although the Veteran was treated for pneumonia in service, there is no evidence of any chronic residuals from the pneumonia. Furthermore, a current chest X-ray does not reveal any evidence of residuals from pneumonia. The reviewing physician additionally noted that there is not a current diagnosis of acute or chronic pneumonia. Regarding the bronchitis, the reviewing physician noted that although the Veteran was treated for acute bronchitis in service, there was not a diagnosis of chronic bronchitis at the time of separation from service. Finally, the reviewing physician noted that the Veteran has a long-term history of smoking tobacco, and indicated that this is the most likely etiology for the Veteran's current respiratory conditions. During the March 2017 Board hearing, the Veteran indicated that he currently experiences chronic breathing problems. He further testified that the only disorder that he has been diagnosed with is pneumonia, which he indicated he usually gets twice a year. The Veteran reported going to the VA hospital only once for this condition and is not currently receiving treatment for chronic pneumonia or any other respiratory condition. The Veteran indicated that he typically treats these symptoms himself with over-the-counter medication. Upon review of the evidence of record, the Board determines that the evidence does not substantiate a finding that the Veteran's currently diagnosed COPD and chronic bronchitis are related to the respiratory conditions he was treated for in service. Specifically, the Board gives greater weight to the opinion of the June 2014 reviewing physician, than to that of the May 2013 examining physician, because the June 2014 reviewing physician provided a thorough rationale for her opinion. The June 2014 reviewing physician acknowledged the Veteran's contentions, however came to the conclusion that his long-term tobacco use is the most likely cause of his respiratory conditions. The Board notes that during the May 2013 VA examination, the Veteran reported that he was exposed to asbestos during service. However, there is no evidence of record to substantiate the Veteran's exposure to asbestos. Furthermore, at no other time, including the March 2017 Board hearing, did the Veteran make this contention. Finally, medical evidence does not support the Veteran's contention. The chest X-ray performed in May 2013 was reported to be normal. Furthermore, the June 2014 reviewing physician indicated that she performed a careful review of the Veteran's claims files, as well as the May 2013 examination, which would include a review of the Veteran's statements regarding alleged exposure to asbestos. After a thorough review of the claims file and the Veteran's contentions, the physician still came to the conclusion that the Veteran's long-time tobacco use is the cause of his respiratory conditions. To the extent that the Veteran has asserted his personal belief that there exists a medical relationship between the pneumonia he contracted while in service and his currently diagnosed COPD and chronic bronchitis, this provides no basis for allowing the claim. The etiology of a respiratory disorder is a complex medical question not capable of lay observation. The Veteran has not demonstrated that he has the knowledge or skill to assess a complex medical condition that requires consideration and interpretation of clinical tests, X-rays or imaging studies, and an understanding of the respiratory system and related disorders. Accordingly, he is not competent to provide an opinion as to the etiology of his current COPD and chronic bronchitis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Kahana v. Shinseki, 23 Vet. App. 428, 438 (2011) (Lance, J. concurring). In conclusion, the Board finds that service connection for a chronic lung disorder is not warranted. The most probative evidence of record does not substantiate a nexus between the Veteran's conditions reported in service and his currently diagnosed COPD and chronic bronchitis, but rather attributes these conditions to the Veteran's long-term tobacco use. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and entitlement to service connection for a chronic lung disorder is denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). b. Acquired Psychiatric Disorder The Veteran claims he is entitled to service connection for an acquired psychiatric disorder based on being falsely accused of stealing a knife during service, and the resulting implications of said event. The medical evidence of record shows that the Veteran currently has a diagnosed mood disorder (not otherwise specified) with depressive and anxiety symptoms, and therefore, a current disability has been shown. A review of the Veteran's service treatment records reflect that in a June 1980 report of medical history, the Veteran reported depression or excessive worry, however, no mental health issues were noted or diagnosed upon examination. Subsequently, in a September 1983 report of discharge medical history, no depression or excessive worry was listed. On a reserve medical history form completed in August 1984, the Veteran indicated that he was having problems with depression or excessive worry, frequent trouble sleeping, and nervous issues, however, the Veteran did not seek any type of mental health treatment for these symptoms, and no psychiatric disability was diagnosed. The service personnel records reflect that the Veteran received disciplinary action in April 1982 as the result of an alleged wrongful appropriation of a knife. In April 2013, the Veteran was afforded a VA examination for his psychiatric conditions. The Veteran reported being an Operations Specialist with the United States Navy. He reported a situation where he feels he was falsely accused and "set up" by a supervising Petty Officer who did not like him. The Veteran adamantly reported not stealing the knife, and continues to be very upset about the whole situation, as he feels that it ruined his career. The Veteran reported not receiving any mental health treatment during service. Additionally, the Veteran reported not seeking any mental health treatment after service, except in 1993 and 1994 when he was treated for methamphetamine dependence. The Veteran reported symptoms of depression and irritability, as well as chronic anxiety and occasional panic attacks. The examining psychiatrist provided a diagnosis of mood disorder with depressive and anxiety symptoms. The psychiatrist opined that "[t]his condition is as likely as not 10% associated with reported military experience of being set-up by a Petty Officer and accused of stealing a knife [and] 90% of this condition is as likely as not associated with post-military domestic, job and other situational stressors." The psychiatrist reasoned that the Veteran was not treated for depression or other mental health conditions during active service. The psychiatrist further reasoned that there is no causal relationship between the Veteran's current mood disorder and any military experiences. In June 2014, due to the conflicting use of the term "as likely as not" in the April 2013 opinion, the RO sent the Veteran's claims file to a psychologist to reconcile any conflicting medical opinion. The psychologist noted that there were not any VA mental health treatment records to review, as the Veteran has not sought mental health treatment, except for being treated for methamphetamine dependence in 1993. The psychologist also noted that the Veteran did not seek mental health treatment during service. The VA psychologist opined that the Veteran's diagnosed condition of mood disorder with depressive and anxiety symptoms is less likely as not due to events related to military service. The psychologist reasoned that there is no evidence that the April 1982 accusation of stealing the knife caused the Veteran to not perform satisfactorily during military service thereafter because he continued to obtain rank. Further, although the Veteran noted in 1984 that he was having problems with depression or excessive worry, frequent trouble sleeping, and nervous trouble of any sort, he did not seek mental health treatment of any kind for these symptoms. The psychologist concluded that there is therefore no documentation of persistent depression and anxiety symptoms stemming from the April 1982 incident. Upon review of the evidence of record, the Board determines that the evidence does not substantiate a finding that the Veteran's currently diagnosed mood disorder occurred in, or was caused by, service. Although the Veteran noted depression or excessive worry on a June 1980 report of medical history, these conditions were not noted on a September 1983 report of discharge medical history, which was after the alleged theft incident. Furthermore, at no point during service was the Veteran diagnosed with, or received treatment for, a psychiatric disorder. In fact, there is no evidence of record that the Veteran has ever received mental health treatment, other than treatment in 1993 for methamphetamine dependence. The Board has considered the Veteran's assertions that the alleged knife theft incident caused his current psychiatric disorder, but these contentions are outweighed by other evidence of record. Additionally, the Veteran is competent to provide a description of symptoms he experienced following the in-service incident, but he is not competent to provide a link between the symptoms he felt in service and his current acquired psychiatric disorder. He has not shown that he has the requisite medical expertise to provide an opinion as to causation of his acquired psychiatric disorder. Although the record establishes that the Veteran received disciplinary action for the alleged theft incident, there is no evidence that the April 1982 accusation of stealing the knife prevented the Veteran from performing satisfactorily in the military, as he continued to obtain rank. Additionally, the June 2014 psychologist's opinion that the Veteran's diagnosed condition of mood disorder with depressive and anxiety symptoms is less likely as not due to events related to military service further weighs against the Veteran's claim. In conclusion, the Board finds that service connection for an acquired psychiatric disorder is not warranted. Although the Veteran reported depression on a medical history form in service, he was not provided a diagnosis and did not seek any mental health treatment while in service. Additionally, the most probative evidence of record does not substantiate a nexus between the alleged theft incident and the Veteran's current mood disorder. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and entitlement to service connection for an acquired psychiatric disorder is denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a chronic lung disorder is denied. Entitlement to service connection for an acquired psychiatric disorder is denied. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs