Citation Nr: 21014503 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 15-44 337 DATE: March 12, 2021 ORDER Service connection for claimed residuals of pneumonia, to include chronic obstructive pulmonary disease (COPD), and to include as secondary to service-connected depressive disorder and insomnia (acquired psychiatric disability) is denied. FINDING OF FACT While the Veteran was treated for pneumonia in service, the weight of the probative evidence is against a finding that such resulted in a chronic disability. In addition, the weight of the probative evidence is against a finding that any current respiratory disability is etiologically related to the Veteran’s active military service. Finally, the weight of the probative evidence is against the claim that a current respiratory disability is either caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection residuals of pneumonia, to include chronic obstructive pulmonary disease (COPD), have not been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303, 3.307, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1962 to December 1963. 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 (RO) in Cleveland, Ohio. In May 2017, October 2017, February 2019, and September 2020, the Board remanded the case to the RO for further evidentiary development. As the matter has now returned to the Board, the Board finds that the requested developments have been undertaken, and are in substantial compliance with the September 2020 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in, or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. That determination requires a finding of a current disability that is related to an injury or disease in service. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313(Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Alternatively, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Thus, secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran asserts that his pneumonia residuals, including and not limited to COPD, are causally related to his active service, and/or are secondary to his service-connected unspecified depressive disorder with insomnia (acquired psychiatric disability). Specifically, the Veteran reported that he was admitted to Ireland Army Hospital with a severe case of pneumonia, and that he was hospitalized from February to May 1962, when he was released from hospital, because the doctors told him that they could not “get [him] any better”, and that he would have to learn to live with the impairment. He explained that during his three months in hospital, he was provided with many experimental antibodies and drugs, until he became allergic or immune to each of them. He further explained that he also underwent treatment to drain fluid from his lungs, and that these conditions left him with severe permanent lung damage. See June 2011 Statement in Support of Claim. Service treatment records (STRs) confirm that the Veteran was diagnosed with pneumonia, as well as pleural effusion of the right lung, while he was in service. See e.g. February 1962 Clinical Record Cover Sheet. However, at separation from service, no lung and/or chest conditions were noted, with the exception of mild pectus excavatum”, which is a congenital deformity. See December 1963 Report of Medical Examination for Separation from Service. Post service treatment records treatment records reflect current diagnoses of respiratory disabilities. Specifically, for example, an April 2011 imaging/radiology report reflects “calcified carinal and right hilar lymph nodes with calcified density in the right lower lobe lung parenchyma and associated calcified pleural [plaque-like] density consistent with prior history of complicated right lower lobe pneumonia.” Post medical treatment records also indicate that the Veteran is diagnosed with exercise-induced asthma, COPD, pectus excavatum (a congenital disorder), and obstructive sleep apnea. See e.g. March 2018 Independent Medical Opinion. In support of his claim, the Veteran provided private medical treatment records, which include an etiological opinion from his treating physician, Dr. B.B. In this February 2018 private opinion, Dr. B.B. opined that “it is most likely as not, that [the Veteran’s] chronic respiratory condition was directly caused by the severe, extended illness, that he experienced while serving in the army.” However, this opinion is inadequate for determining this claim because Dr. B.B. did not provide a rationale to support this opinion, and thus, the Board cannot attribute it any probative value. Nonetheless, VA obtained an independent medical opinion on the etiology of the Veteran’s pneumonia residuals. In this March 2018 independent medical opinion, a VA examiner noted that the Veteran’s current respiratory conditions, include asthma, COPD, pectus excavatum, and obstructive sleep apnea. Further, she clarified that the Veteran has a past medical history of aortic and ascending thoracic aneurysm, macular degeneration, pulmonary hypertension, with diastolic dysfunction, peripheral vascular disease with Raynaud phenomemon, hyperlipidemia and tobacco abuse (1 pack/day for 5 years, beginning at age 18). She opined that it is less likely than not the Veteran’s claimed right or left lung nodules, pleural thickening and/or calcification has its onset in service or is otherwise etiologically related to service. As the rationale for this opinion, the VA examiner explained, in pertinent part, that the lesions in the Veteran’s lungs are not consistent with acute or chronic pneumonia infection pathology and/or radiographic findings. Additionally, she also opined that for the same reasons, it is less likely than not that the Veteran’s claimed respiratory condition, other than a right or left nodule, pleural thickening, or calcifications, originated in active duty service, or is otherwise etiologically related to service, to include the Veteran’s in-service thoracenteses and episode of pneumonia. In a July 2018 addendum opinion, another VA examiner provided further clarification on the etiology of the Veteran’s alleged pneumonia residuals. In this opinion, the VA examiner opined that there is “essentially no chance that the [Veteran's] COPD, asthma, pectus excavatum, pulmonary hypertension, or obstructive sleep apnea is due to pneumonia at any time in the past.” The VA examiner clarified that pneumonia does not cause COPD, pulmonary hypertension, or obstructive sleep apnea. The VA examiner further explained that he did not see any evidence that the Veteran has chronic pneumonia, but that the causes of chronic pneumonia are not in any way related to a first pneumonia in patients who have them. The VA examiner also explained that the Veteran had normal pulmonary function tests (PFTs) in 2011, ruling out underlying structural disease. Although the VA examiner conceded that the Veteran has residual pleural thickening and calcification in his right lower lobe, he clarified that these are a direct result of the pneumonia he had in 1962, but he also disclaimed that they are normal sequalae from pneumonia with pleural effusion, especially in the era when penicillin and sulfa were the only available antibiotics, and that they are of no clinical significance. The VA examiner also explained that the scarring the Veteran has, elsewhere in the lungs, are “due to emphysema (COPD), caused by smoking, are in no way related to his 1962 pneumonia (which can only cause scarring in the lobe that it is in)”, and that these are of no clinical significance, given his normal PFTs in 2011. He also noted that the Veteran’s left lung calcified nodules are most likely the result of fungal infection before the Veteran entered service; they are very common, and have not progressed over the eyes; are of no clinical significance; and that they are in no way related to nor exacerbated by a right lower lobe pneumonia. Here, the Board finds that these March and July 2018 opinions are adequate as they provide a comprehensive, detailed, rationale that explains why the Veteran’s respiratory conditions, and/or alleged pneumonia residuals are not causally related to the Veteran’s current respiratory disabilities. Further, the rationale for the opinions are based on a review of the claims file, the Veteran’s medical history, and are supported by medical literature, thereby enabling the Board to make a fully informed decision. In this regard, the Board finds that the preponderance of the evidence is against this claim, as the probative evidence does not show that there is a causal relationship between the Veteran’s current respiratory disabilities and his resolved pneumonia and/or related lung conditions from his active service. Alternatively, the Veteran additionally suggests that his “complications of pneumonia and/or COPD” are secondary to his service-connected acquired psychiatric disability. Specifically, the Veteran asserted that the “Veteran is service-connected for depressive disorder with insomnia, both conditions which are known to increase the chances of pneumonia complications and severity.” In support of this assertion, the Veteran submitted medical literature/publications, to include a 2014 peer-review study from the Journal of Psychosomatic Research, as well as a 2018 study published in the Journal of Infection and Public Health. See August 2020 Appellate Brief. Given the Veteran’s assertions, in September 2020, the Board remanded this matter for an opinion on the basis of secondary service connection. Accordingly, in a December 2020 VA opinion, the VA examiner opined that it is less likely than not the Veteran’s currently diagnosed “pneumonia residuals”, to include COPD, were caused by or aggravated by his service-connected disability of unspecified depressive disorder with insomnia. In support of this opinion, the VA examiner explained that although the peer-review papers cited in the Veteran’s August 2020 appellate brief both pointed out an association between depression and pneumonia and between insomnia and pneumonia, “[association/correlation] is not causation, and since no causal mechanism is demonstrated in these papers, even though the [Veteran] has an acknowledged history of all three conditions, it is not possible to establish a causal connection between them.” She further explained that these studies therefore cannot prove that either the Veteran’s depression or his insomnia caused, aggravated, or resulted from his in-service pneumonia. Further, she stated that “CPRS noes do not record a diagnosis of COPD, because the medical evidence does not support it.” She explained that normal PFTs (2011), 9 years of annual chest CT reports, from 2011 to the present, fail to detect findings consistent with COPD. She further explained that the Veteran has undergone a number of studies, including heart catheterization, and pulmonary embolism, and that VA pulmonology have seen the Veteran frequently and regularly, whereas the Veteran’s lung condition is best described as stable asthma, controlled with regular Singulair. The Veteran presents numerous assertions about the adequacy of the December 2020 VA examination, and further, questions its compliance with the September 2020 Board remand. See February 2021 Appellate Brief. First, the Veteran asserts that the VA examiner’s opinion “is based on at least three inaccurate premises.” The Veteran reasoned, in pertinent part, that first, the VA examiner noted that “the earliest medical records are from 2011”, and that second, the VA examiner stated that the Veteran has not been diagnosed with COPD.” The VA examiner also asserted that if “the VA examiner, as she states in her rationale, believes the diagnosis of COPD is unsupported by ‘medical evidence’ she needs to explain why she ignored the clear medical evidence dating from 2000 and 2009 that the Veteran’s x-rays showed signs of COPD.” However, the Board finds that the Veteran has taken these excerpts out of context. The VA examiner provided a clear, adequate rationale for finding that the Veteran does not have a current diagnosis of COPD. Specifically, she stated, in pertinent part, “Normal PFTs (2011), 9 years of annual chest CT reports, from 2011 to the present, fail to detect findings consistent with COPD. The Veteran has undergone a number of studies, including heart catheterization. . . and PE[,] VA pulmonology . . . have seen the Veteran frequently and regularly, [and] the Veteran’s lung condition is best described as stable asthma, controlled with Singular.” See December 2020 VA Opinion. Additionally, the Board particularly notes that a current disability is one that existed on or after the date of application for that disability. See 38 U.S.C. § 1110; see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); see, too, McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (agreeing that the requirement that a claimant have a current disability before service connection may be awarded is satisfied when a claimant has a disability at the time a VA claim is filed or during the pendency of that claim.). In this case, the Veteran filed his claim for “residuals of pneumonia” in May 2011. See May 2011 VA Form 526: Veteran’s Application for Compensation or Pension. Thus, as the evidence did not show a current diagnosis of COPD at the time of this claim, the evidence is consistent with the VA examiner’s determination that the Veteran does not have COPD. In this regard, the January 2000 and February 2009 treatment records, which reflect a diagnosis of COPD, are not probative as these treatment records were not contemporaneous, and thus, did not constitute evidence of a current disability at the time the Veteran filed his claim in May 2011. Second, the Veteran challenges the competency of the VA examiner who rendered the December 2020 medical opinion, in her capacity as an internist. He requests that “VA provide the curriculum vitae and other information about qualifications of the examiner that demonstrates that she was competent to provide a negative nexus opinion regarding the etiology of the Veteran’s claimed service-connected respiratory disability.” Although the Veteran does not clearly explain why he feels as though the VA examiner is not competent, he merely suggests that “this information will be new and relevant to the question of whether there is adequate evidence to deny this claim.” The Board acknowledges that the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a Veteran is required to raise a specific challenge to the competency of a VA examiner before VA is required to respond with information about the qualifications of the examiner. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011); see also Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019) (finding that a Veteran is required to challenge a VA examiner’s competence in the first instance). Here, the Veteran's representative appears to suggest that “the internist who rendered a negative nexus opinion on December 21, 2020” is not qualified to render a medical opinion. However, the representative has not presented any evidence to support this assertion. Other Federal Circuit precedent also suggests that VA may rely upon the medical evidence obtained by the AOJ during the pendency of this appeal, including this December 2020 VA opinion, in adjudicating the Veteran's currently appealed claim. For example, in Bastien v. Shinseki, 599 F.3d 1301, 1306 – 7, an appellant challenged the qualifications of a VA physician to provide a medical expert opinion on the grounds that this physician lacked objectivity and/or independence because he was a VA employee. Citing Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009), the Federal Circuit, in Bastien, rejected the appellant’s challenge to the qualifications of a VA physician and held instead that the law and regulations provide that VA “is explicitly and implicitly authorized to use its own employees as experts.” See Bastien, 599 F.3d at 1307 (citing 38 U.S.C. §§ 5103A(d), 7109(a); 38C.F.R. § 20.901). The Federal Circuit also held in Bastien that an appellant challenging the expertise of a VA physician must “set forth the specific reasons . . . that the expert is not qualified to give an opinion.” Id. However, that is not the case here, as the Veteran or his representative has not provided any specific reason or evidence to show that the December 2020 VA examiner who rendered the nexus opinion was not competent, or that she lacks the requisite medical training and/or qualifications for rendering a competent opinion on secondary service connection, based on a review of the Veteran’s claims file. The Federal Circuit noted in Rizzo that there is “no law or precedent suggesting that the Board must have first established [a VA examiner’s] qualifications on the record before assigning his opinion probative value.” See Rizzo, 580 F.3d at 1291, 92. Rather, as the Federal Circuit held in Francway, although there is no longer a presumption of competence for VA examiners (as Rizzo previously was interpreted), a Veteran nevertheless is required to challenge a VA examiner’s competence in the first instance before VA is required to present evidence of the examiner's professional qualifications in order to rebut this challenge. See Francway, 940 F.3d at 1308 (overruling, in relevant part, Rizzo, 580 F.3d 1288 (Fed. Cir. 2009), and Bastien, 599 F.3d 1301(Fed. Cir. 2010) to the extent that those cases established a presumption of competence for VA examiners). There is a presumption that VA follows a regular process that ordinarily results in the selection of a competent medical professional. Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013) (citing Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011)). Thus, as the Federal Circuit explained in Francway, if the Veteran does not meet the requirement to challenge a VA examiner's competence in the first instance, then VA is not required to prove any examiner’s competence before relying on medical evidence obtained from the examiner in adjudicating this appeal. While the Veteran’s representative challenges the competency of the VA examiner to render findings and an opinion on the nexus between his alleged pneumonia residuals and his service-connected acquired psychiatric disability, there is no indication that any greater level of specialized training, beyond the scope of her capacity as a qualified, general internal medicine physician, is required for this type of medical opinion. As a matter of fact, VA satisfies its duty to assist when it provides a medical examination performed by a person who is qualified, through education, training or experience, to offer medical diagnosis, statements, or opinions, whether it a physician or other medical specialist. See Cox v. Nicholson, 20 Vet. App. 563, 568 (2007) (citing Goss v. Brown, 9 Vet. App. 109, 114 (1996)). In this regard, the Board finds that the VA examiner was competent to render the December 2020 VA opinion. Pertinently, the evidence does not show that the VA examiner’s report of findings are inaccurate in the December 2020 VA opinion. While the VA examiner suggests that the VA opinion is based on inaccurate premises because the VA examiner stated that “ the Veteran has not been diagnosed with COPD”, as noted above, the VA examiner’s determination that the Veteran does not have COPD is consistent with the medical evidence, as no diagnostic tests have indicated a diagnosis of COPD at any time since the Veteran filed this claim. Further, in her capacity as a physician, the VA examiner concluded that the COPD diagnosis is in error, and in support of this determination, she specifically explained that normal “PFTs (2011), 9 years of annual chest CT reports, from 2011 to the present, fail to detect findings consistent with COPD.” Thus, she provided a clear, adequate rationale to support her determination that the Veteran does not have a current diagnosis of COPD. Pertinently, by evaluating the probative value of the opinion as a whole, the December 2020 VA opinion has not presented any inaccurate details or conclusions, without providing a clear rationale, in addressing the ultimate question of whether the Veteran’s claimed pneumonia residuals are caused by or aggravated by his service-connected acquired disability. Thus, the Board also finds that this December 2020 VA Opinion is adequate for purposes of determining any relationship between his service-connected acquired psychiatric disability and any current respiratory disability. Third, and finally, the Veteran asserts that the VA examiner clearly failed to comply with the remand directives. He asserts, in pertinent part, that “‘the Veteran reported that he continued to have issues with shortness of breath following service with strenuous activities such as pheasant and squirrel hunting and walking 18 holes of golf . . . The Veteran reported having none of these problems before service. They all started after his bout with pneumonia in service.” He further asserted that the VA examiner failed to address the Veteran’s reported symptoms and history, but instead focuses entirely upon clinical evidence, and that the AOJ should have noticed this failure and should have taken appropriate corrective action before returning the Veteran’s appeal to the Board. The Veteran’s assertions, however, are without merit as they are inapposite to the issue of secondary service connection, which was the subject of the Board remand. As a matter of fact, after the July 2018 VA examiner rendered an adequate opinion that is based on direct service connection, thereby finding that the Veteran’s “pneumonia residuals” are not causally related to his service, the Veteran then asserted, in the alternative, that “complications of pneumonia and/or COPD” are secondary to his service-connected acquired psychiatric disability, in an August 2020 Appellate Brief, citing to medical literature. On this basis, the Board remanded this matter for a VA examiner to determine whether the Veteran’s COPD and/or “pneumonia residuals” are caused by or aggravated by his acquired psychiatric disability. Thus, by asserting, for example, that the VA examiner did not mention the Veteran’s reported symptoms or history, that the Veteran reported having none of his problems before service, and that they all started after his bout with pneumonia, the Veteran’s arguments are based on direct causation, rather than causation or aggravation by the service-connected acquired psychiatric disability. Pertinently, the Veteran overlooks the VA examiner’s disclaimer in which she stated, “I acknowledge and agree that the Veteran is competent to report his symptom and history, and that his report must be specifically acknowledged and considered in formulating any opinion and I reject the Veteran’s reports as being medically-inconsistent with the evidence or for any other reason, I must provide [a] detailed rationale doing so.” Additionally, the VA examiner specifically indicated that she has reviewed the “peer-review papers cited in the Veteran’s Brief of August, 2020 [and] both point out an association between depression and pneumonia and between insomnia and pneumonia . . .” Thus, contrary to the Veteran’s assertions that the VA “examiner has clearly failed to comply with the remand directives”, there is no indication that such is the case here, and as noted above, the VA examiner is in substantial compliance with the remand directives. In summary, the probative evidence does not show that the Veteran’s asserted in- service pneumonia residuals are causally related to any of his respiratory conditions. Particularly, no link has been established between his in-service pneumonia, which resolved by the time he separated from service, and any current respiratory disabilities. Further, the evidence fails to show that the Veteran’s COPD and/or pneumonia residuals are caused by, or aggravated by his Acquired psychiatric disability. Thus, as the preponderance of the evidence is against this claim, service connection for pneumonia residuals, to include COPD, on the basis of direct causation that is due to active service and/or secondary to the service-connected acquired psychiatric disability, must be denied. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V-N. Pratt The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.