Citation Nr: 0000681 Decision Date: 01/10/00 Archive Date: 01/19/00 DOCKET NO. 84-30 839 ) DATE ) RECONSIDERATION ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES Entitlement to service connection for bilateral pneumothoraces, chronic obstructive pulmonary disease, bronchitis and pleurisy. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL The appellant ATTORNEY FOR THE BOARD R. A. Caffery, Counsel INTRODUCTION The veteran served on active duty from February 1952 to November 1953. By rating action dated in September 1982, the Department of Veterans Affairs (VA) denied entitlement to service connection for bilateral pneumothorax, chronic obstructive pulmonary disease, bronchitis and pleurisy. The veteran appealed from that decision. In April 1987, the Board of Veterans' Appeals (Board) affirmed the decision. In July 1998, the veteran's representative submitted a request for reconsideration of the prior Board decision. In January 1999, reconsideration of the decision was ordered by the Board and the case was referred to an expanded reconsideration section of the Board. In June 1999, the Board obtained an opinion regarding the veteran's claim from a VA medical expert. In July 1999, the opinion of the VA medical expert was forwarded to the veteran's representative for review and comment. The representative responded in September 1999. The case is now before the Board for appellate consideration. This decision by the reconsideration section replaces the Board decision of April 1987. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the regional office to the extent possible. 2. Bilateral pneumothoraces, chronic obstructive pulmonary disease, bronchitis and pleurisy were not demonstrated either during the veteran's active military service or for many years following his release from active duty. 3. It is reasonably probable that the veteran's bilateral pneumothorax, bronchitis and pleurisy are related to his service connected pulmonary tuberculosis. 4. The evidence does not establish that the veteran's chronic obstructive pulmonary disease was caused by or is related to his service connected pulmonary tuberculosis. CONCLUSIONS OF LAW 1. Service connection for bilateral pneumothoraces, bronchitis and pleurisy is in order as it is reasonably probable that they are proximately due to or the result of a service connected disease or disability. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.310(a) (1999). 2. The veteran's chronic obstructive pulmonary disease is not proximately due to or the result of a service-connected disease or disability. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. § 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that it has found the veteran's claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); effective on and after September 1, 1989. That is, the Board finds that he has presented claims which are plausible. The Board is also satisfied that all relevant facts have been properly developed to the extent possible. In this regard, it appears that the only available service medical record is the report of the veteran's physical examination for separation from service. Accordingly, the Board will base its decision on the evidence of record. I. Background The veteran's service medical records reflect that, when he was examined for separation from service in November 1953, clinical evaluation of his lungs and chest was reported to be normal. The veteran's initial claim for VA disability benefits was submitted in June 1957. He referred to pulmonary tuberculosis. The veteran was hospitalized by the VA from June to October 1957. He complained that for two months prior to admission he had had chills and fever. In the previous two weeks, he had an aching pain, occasionally pleuritic in character, in the left shoulder. He smoked one pack of cigarettes per day, and he had done so for the previous 9 or 10 years. As a child, he had had "pneumonia fever." A chest X-ray study showed fibrocalcific changes in the right lung field, suggestive of a healed primary complex with a large calcified right hilar node, left upper lung field infiltrate with areas of probable cavitation and a probable small pneumothorax on the left. Probable pulmonary tuberculosis of the left lung was initially diagnosed. Tests were positive for acid-fast bacilli. At discharge, the diagnosis was pulmonary tuberculosis, moderately advanced, active 4 to 6 months (changing an earlier diagnosis that the condition was only minimally active). When the veteran was examined by the VA in May 1958, he complained that he would cough up blood and had shortness of breath. The respiratory evaluation was essentially negative. A chest X-ray showed that there had been clearing of the infiltration in the left upper lobe but otherwise no change. Tuberculosis, pulmonary, minimal, inactive (zero months) was diagnosed. When the veteran was examined by the VA in January 1959, his pulmonary tuberculosis was still noted to be minimal and inactive. When the veteran was examined by the VA in April 1968, he complained of having had lower posterior chest wall discomfort, shortness of breath and almost daily blood- streaked sputum since having had an automobile accident in November 1967. Several small calcified nodes were present in both hilar regions; several small fibrocalcific nodules were noted in the right lung and a few linear strands in the left. The diagnosis was tuberculosis, reinfection type, minimal. The etiology of the blood-streaked sputum was undetermined, except that it could have had its origin from pigmented gingiva of the mandibles. The veteran was hospitalized at the Mercy Hospital in October 1969 with cough, fever and a pleural type pain in the chest. Bronchitis and pleurisy were noted as diagnoses; a final diagnosis of acute pleuropneumonia was also rendered. In a September 1972 letter, the veteran's private physician, Albert S. Palatchi, M.D., indicated that the veteran had been a heavy smoker for many years and had had frequent bouts of pneumonia in the past. Chest examination was essentially negative but an X-ray study showed hilar calcification. Findings during a January 1972 hospitalization were compatible with chronic bronchitis. That condition was considered due to tobacco smoking. An April 1973 VA X-ray report reflects hydropneumothorax on the left and some changes of chronic obstructive pulmonary disease. The veteran was hospitalized at Mercy Hospital in April 1973. It was noted that, prior to admission, he had had chest pain and then had pleurisy. He had reportedly quit smoking several months earlier. He was diagnosed with a spontaneous pneumothorax and a left closed tube thoracotomy was performed with prompt expansion of the lung. In a June 1973 statement, John C. Gillen, M.D., reported diagnoses of chronic low grade recurrent bronchitis, emphysematous blebs and recent spontaneous pneumothorax. A June 1976 pulmonary function data sheet from Fort Hamilton- Hughes Memorial Hospital contains a notation that the veteran was not smoking at that time, but had smoked two packs per day for 20 years. A November 1979 chest X-ray study from the Butler County Chest Clinic reveals increased retrosternal clear space and hyperlucency of the lung fields bilaterally, consistent with chronic obstructive lung disease. There was bilateral minimal apical pleural thickening. Bilateral hilar granulomatous calcifications and left superior hilar and paratracheal calcified nodes were also noted. The veteran was hospitalized at the Mercy Hospital from March to April 1980 following several days in March 1980, at Bethesda Hospital for hemoptysis and a small apical right pneumothorax. (During the first hospitalization he had a negative tuberculin skin test but had been treated with topical steroids for a strong tuberculin skin test reaction). On admission to the hospital, he was diagnosed with a spontaneous right pneumothorax, probably secondary to bullous emphysema. He also had hemoptysis, possibly related to bullous emphysema, broncholithiasis and bronchitis. At discharge, the pneumothorax had resolved. A July 1982 VA chest X-ray study showed prominent calcific nodes in the right peribronchial region as well as a smaller bullae in the right apex. In a July 1982 statement, Kenneth L. Wehr, M.D., indicated that the veteran had bilateral apical bullous emphysema and recurrent pneumothoraces on the right and one on the left. In an October 1982 letter, Dr. Wehr indicated that the veteran had stable but inactive pulmonary tuberculosis with positive tuberculin reactive tests. During the course of a hearing before a member of the Board sitting at the regional office in May 1983, the veteran related that he had had pneumonia on several occasions from 1952 until he had been diagnosed as having tuberculosis. He believed that he had never gotten over his tuberculosis. He stated that his tuberculosis was arrested but his lung condition remained the same. The veteran was examined by the VA in July 1983. It was concluded that the veteran had had tuberculosis infection with pulmonary disease, probably inactive from 1978 or 1980, status post several courses of combined chemotherapy. The examiner stated that there was a "direct relationship" between the prolonged tuberculosis history and the pneumothoraces of 1973 and 1980, the pleurisy of 1969 and bronchitis. The examiner further stated that the veteran's bronchitis was also related to his smoking history and his pneumothoraces were possibly related to a bullous emphysema. The veteran was hospitalized at the Bethesda Hospital in April 1984 with viral pleurisy and chronic bronchitis. When the veteran was examined by the VA in May 1986, a history of a bilateral lung collapse was noted. Pulmonary tuberculosis and asthma were also noted. The veteran was hospitalized in July 1986 at the Deaconess Hospital with a spontaneous pneumothorax and chronic bronchial asthma. In an August 1986 statement, David I. Bernstein, M.D., indicated that there were no further sequelae from that pneumothorax. The veteran testified at a hearing at the regional office in November 1991 before a hearing officer. He contended that he had been treated for essentially the same respiratory disorders for about 28 years. In a January 1998 statement, Dr. Wehr noted that the veteran's tuberculosis had been inactive. He stated, however, that the veteran's multiple recurrent pneumothoraces and pleurisy were almost assuredly related to that illness since in the past the veteran "was not a heavy cigarette smoker." Dr. Wehr further concluded that the veteran's concurrent bronchitis and pulmonary emphysema were probably related to tuberculosis. In March 1999 the Board referred the veteran's records for review by a VA medical expert and opinions regarding whether any current respiratory disability of the veteran was related to the veteran's tuberculosis or any residuals of tuberculosis. In June 1999 the VA medical expert reviewed the medical history of the veteran as set forth in the claims file in considerable detail. She noted that it was not common to see emphysema as a sequela of tuberculosis (TB). She related that the pleurisy appeared to be associated with the pneumothorax. She further indicated that it was also not clear that his pleurisy and pneumothorax had an association with his tuberculosis. She noted that the most common etiologies of pneumothoraces were subpleural blebs, emphysema, active tuberculosis, and pneumonia. The medical expert stated, in summary, that it was possible that there was a direct relationship between tuberculosis and some of his respiratory symptoms but it was highly unlikely. Specifically, it was possible that his pneumothoraces were residuals of TB, although that usually occurred with active TB, and there were other causes, including emphysema and congenital abnormalities. It was not clear to her that his TB aggravated any of his current respiratory disabilities or that his TB infections had much impact on his subsequent symptoms or findings. She went on to note that the veteran had a 25-50 pack-year smoking history and a pulmonary function test in 1977 was consistent with a diagnosis of asthma, which explained many of his respiratory symptoms. She specifically found that there was no evidence of bronchiectasis, which could be a sequelae of TB and could cause symptoms similar to chronic bronchitis. In September 1999, the veteran's representative submitted a September 1999 statement from Craig Bash, M.D. Dr. Bash indicated that he had reviewed the medical record and claims file for the veteran and that he agreed with several physicians that the veteran had cavitary fibrotic calcific granulomatous tuberculosis in the 1950's. He stated he also agreed with the linkage of the veteran's cavitary fibrotic calcific 1957 lung disease and his subsequent pneumothoraces and pleurisy as documented by Dr. Wehr and the VA examiner in 1983. He stated that the veteran was at high risk of developing the secondary complications of tuberculosis due to the damage that his lungs sustained during the active phase of tuberculosis with or without his smoking history. He indicated that the veteran's pneumothoraces were an expected complication of his lung disease. He stated he agreed with the VA medical expert and the VA examiner in 1983 that pleurisy and pneumothorax were associated. He also agreed with the VA medical expert that the veteran's emphysema was not likely associated with his tuberculosis. He disagreed with the VA medical expert and agreed with the VA medical examiner in 1983 concerning the association between tuberculosis and bronchitis because the veteran by X-ray had damage scarred cavitary lung disease in 1957 and that type of lung disease was a setup for recurrent infections. It was Dr. Bash's opinion that the veteran's smoking simply made matters worse and likely caused his obstructive lung disease and emphysema. Dr. Bash stated that, in summary, the scars and cavities from the veteran's tuberculosis significantly increased his risk for developing future repeated pulmonary infections and pneumothoraces which led to more scarring, bronchiectasis and pleurisy. He related that he did not think the veteran's emphysema was related directly to his tuberculosis and he agreed with the VA medical expert that that disease was most likely secondary to the veteran's chronic smoking history. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110. Service connection may be granted for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). In this case, the veteran's physical examination for separation from service, which is apparently his only service medical record, does not reflect any complaint or finding regarding any of the respiratory conditions for which service connection is currently claimed. Those disorders were initially medically demonstrated many years following the veteran's separation from military service. The veteran has not contended otherwise. Rather, he has maintained that the respiratory disorders are residual to his service connected pulmonary tuberculosis. The record reflects that a VA examiner who had examined the veteran in July 1983 expressed an opinion that there was a "direct relationship" between the veteran's prolonged tuberculosis history and his pneumothoraces of 1973 and 1980, the pleurisy of 1969 and bronchitis. In June 1999 the VA medical expert indicated that it was possible that the veteran's pleurisy and pneumothoraces were related to the tuberculosis although she doubted it. In his September 1999 statement, Dr. Bash indicated that the pneumothoraces, bronchitis and pleurisy were all related to the veteran's service-connected tuberculosis, and presented a plausible chronology for the progression and explanation for the relationship between them. However, he agreed with the VA medical expert that the veteran's chronic obstructive pulmonary disease resulted from his cigarette smoking and was not related to the tuberculosis. In view of the opinions expressed by Dr. Wehr, and the VA medical examiner in 1983, together with the recent opinions by the VA medical expert and Dr. Bash, the Board believes that the evidence regarding the veteran's claims for service connection for bilateral pneumothorax, bronchitis and pleurisy is in equipoise and that service connection should therefore be established for those disorders as secondary to the veteran's service connected tuberculosis residuals. The opinions which consider the probability of such a relationship do vary somewhat as to the likelihood of that etiology, as opposed to other, alternative causes. While the Board may be doing a disservice to these lengthy and finely reasoned medical opinions, it appears that the likelihood could best be summarized as ranging from possible to highly probable; thus rather closely fitting the concept of relative equipoise as set out in Gilbert v. Derwinski, 1 Vet. App. 49 (1990). That is, there is an approximate balance of positive and negative evidence regarding the merits of the material issue. Under the controlling statute, in such a situation the question must be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.310(a). With regard to the claim for chronic obstructive pulmonary disease, the 1983 opinion did not discuss such a possibility. Dr. Wehr found an association between pulmonary emphysema and tuberculosis but gave no analysis. Furthermore, Dr. Bash and the VA medical expert agreed that that condition was not likely associated with pulmonary tuberculosis. Dr. Bash expressed an opinion that the veteran's chronic obstructive pulmonary disease had likely been caused by his smoking. In short, the recent and detailed medical opinions of record indicate that there is no relationship between the veteran's chronic obstructive pulmonary disease and his service connected pulmonary tuberculosis. The Board can only conclude that the evidence is not so evenly balanced that there is doubt as to any material issue on that question. As such, it is insufficient to establish service connection for chronic obstructive pulmonary disease as secondary to the veteran's service connected pulmonary tuberculosis. ORDER Entitlement to service connection for bilateral pneumothoraces, bronchitis and pleurisy is established. The appeal is granted to this extent. Entitlement to service connection for chronic obstructive pulmonary disease is not established. To this extent, the appeal is denied. BRUCE KANNEE DEREK R. BROWN Member, Board of Veterans' Appeals Member, Board of Veterans' Appeals RICHARD F. WILLIAMS Member, Board of Veterans' Appeals S. L. KENNEDY RENÉE M. PELLETIER Member, Board of Veterans' Appeals Member, Board of Veterans' Appeals ROBERT D. PHILIPP Member, Board of Veterans' Appeals