Citation Nr: 0005237 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 94-26 341 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease with bronchial asthma secondary to service connected left pneumothorax. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Eckart, Associate Counsel INTRODUCTION The veteran served on active duty from September 1963 to September 1965. This case initially came before the Board of Veterans' Appeals on appeal from an October 1993 rating action of the Nashville, Tennessee Regional Office (RO) of the Department of Veterans Affairs (VA), which, in part, denied entitlement to service connection for chronic obstructive pulmonary disease (COPD) as secondary to the service connected left pneumothorax. In July 1996, the Board remanded the case to the RO for additional RO development of the issue of service-connection for COPD. In a supplemental statements of the case dated in March 1997, in September 1998, in May 1999 and in July 1999, the RO provided notice of continued denial of service connection for COPD following additional development and consideration of the issue, as requested by the Board in its July 1996 remand. The case is now returned to the Board for further consideration. The Board observes that the veteran's representative has advised the veteran of a pending appeal regarding entitlement to increased evaluation for pes planus denied by the RO in the October 1993 rating decision. This matter is not currently before the Board, as the veteran did not perfect his appeal following the RO's June 9, 1994 issuance of a statement of the case addressing this matter. FINDINGS OF FACT 1. No medical evidence has been submitted to show that the veteran is suffering from COPD with bronchial asthma due to service or that any COPD is related to a service-connected disorder, including pneumothorax. 2. The appellant has not submitted evidence sufficient to justify a belief by a fair and impartial individual that the claim for service connection for COPD with bronchial asthma is plausible. CONCLUSION OF LAW The claim for service connection for COPD with bronchial asthma is not well grounded. 38 U.S.C.A. § 5107 (a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran contends that the current diagnosed condition of COPD disease with bronchial asthma was caused by or materially contributed to the veteran's service-connected pneumothorax condition. The report from the veteran's September 1963 entrance examination revealed no evidence of pulmonary abnormalities, although a medical history of whooping cough was noted. Service medical records reveal that he was treated in June 1965 for spontaneous pneumothorax, left. Chest X-rays from June 1965 showed pleural effusion. He underwent a closed thoracotomy, with complete re-expansion accomplished. He was discharged to limited duty for one month. In August 1965, he was seen for pain in the right sided lower thorax. His separation examination of August 1965 revealed normal pulmonary findings, and X-ray study of the chest was negative. On VA examination in February 1968, there were no residual findings of active disease shown on X ray study of the chest. The examination findings from February 1968 revealed the chest to be normal otherwise, except for a small surgical scar. There was no evidence of respiratory embarrassment, nor cough or expectoration, mobility was good, palpation was normal, percussion was resonant and breath sounds were vesicular with no rales. The assessment from the February 1968 examination was no abnormal lung condition found at present. By a rating action in April 1968 the veteran was granted service connection for left pneumothorax and was assigned a noncompensable evaluation. VA treatment records from the 1970's and 1980's are essentially negative for findings of pulmonary abnormalities, although the veteran was seen in January 1976 for a cough that lasted about 1 to 2 days, and a history of bronchitis in 1965 was given. He was also treated for "flu" in October 1981. VA outpatient treatment records dated in July 1990, show that the veteran complained of shortness of breath and was diagnosed with mild COPD. He was treated for periodic episodes of shortness of breath in October 1990 and continued treatment for pulmonary problems in March 1991. In July 1991, the veteran was diagnosed with COPD with bronchial asthma, mild pulmonary emphysema. A VA compensation and pension examination performed in December 1991 diagnosed COPD with predominant asthmatic component. He underwent a VA medical examination in September 1993, with pulmonary function tests indicating possible early small airway obstruction. The examiner's noted that in his opinion, based on historical, physical, and study data, it is not likely the veteran's diagnosed COPD (diagnosed 1990) is related to the old spontaneous pneumothorax in 1965. Of record is a letter dated in March 1994 with an illegible signature on letterhead from the Family Health Center of East Tennessee. The author of the letter stated that he or she had treated the veteran intermittently, most recently in February 1994, for moderately severe symptomatology from his respiratory patho- physiology in the past. The author of the letter also documented as follows: "Significant past history includes a spontaneous pneumothorax." Evidence obtained pursuant to the Board's July 1996 remand, includes medical evidence used in conjunction with the veteran's claim for Social Security Disability benefits. Among these records are private and VA medical records showing treatment for COPD from 1990 to 1996. A July 1990 VA chest X-ray report questioned the etiology of the veteran's shortness of breath and raised the possibility that it might be related to primary pulmonary hypertension in this patient with large proximal pulmonary arteries. A November 1990 new patient pulmonary evaluation form for a private facility revealed current complaints of congestion and wheeze, gave a history of an episode of these same complaints beginning one year ago, with a family history of asthma noted and a pack a day smoking history noted for a total of 10 to 15 years, discontinued 10 years ago. No mention was made of the collapsed lung in conjunction with current complaints presented, although the surgical history of chest tube for collapsed lung 24 years earlier was given. A December 1990 private chest X-ray report diagnosed evidence of old granulomatous disease with no acute cardiopulmonary abnormality. An April 1991 private X-ray report diagnosed no active cardiopulmonary disease, and perihilar post inflammatory change. In a June 1991 private treatment report, he was diagnosed with asthmatic bronchitis, and a history of collapsed lung 26 years ago with thoracotomy was given, although no opinion regarding any etiology was given. A June 1991 disability evaluation for Social Security also noted a past history of asthmatic bronchitis since 1989 and collapsed lung with thoracotomy in 1965, but provided no opinion regarding whether there was a relationship between the two pulmonary phenomena. An April 1994 VA chest X-ray diagnosed questionable COPD and bilateral pulmonary emphysema. Another April 1994 summary of pulmonary function testing noted complaints of asthma, with attacks in the presence of strong fumes or weather changes and chronic bronchitis with shortness of breath. The summary reported a history that included a pack a day cigarette habit for fifteen years, having quit fifteen years ago, and also related a history of treatment in 1965 for left pneumothorax. This April 1994 summary did not include an opinion regarding whether the pneumothorax was related to his current symptoms. In private treatment records from January 1995 and November 1995, he was assessed with COPD with bronchitis, with asthma also diagnosed in November 1995. In May 1996, a private treatment record diagnosed COPD, acute exacerbation, possible atypical agent. He was seen in July 1996 for an acute exacerbation of COPD. In September 1996, a VA pulmonary function test report was interpreted as mild obstructive disease. The report from the VA examination conducted in August 1998 in conjunction with the Board's remand, reviewed the history of progressive dyspnea over the past 10 to 15 years. The dyspnea was described as associated with a chronic cough usually productive of white sputum and often associated with wheezing. It was said to be usually associated with exertion, but aggravated by cold, smoke and dust. These "attacks" were said to have resulted in emergency room visits, but not hospitalizations. The veteran provided a history of orthopnea (4 pillow) and paroxysmal nocturnal dyspnea. Past medical history included the spontaneous left pneumothorax in June 1965 at the age of 25. Records were noted to show complete re-expansion within a week. Follow up examination in February 1968 was noted to show no residual cardiopulmonary problems from that episode. There was also no history of tuberculosis or pneumonia, hay fever or sinus allergies noted. The 10-15 pack history of smoking, with last period of smoking in 1980, was reported. Physical examination was significant for findings on auscultation of the lungs, which revealed sparse scattered inspiratory and expiratory wheezes with good breath sounds to both bases; there was no associated conduction disturbances and no other adventitious sounds. X-ray study of the chest as reported in the August 1998 examination, revealed mild emphysematous changes, and perhaps a hint of left ventricular prominence; otherwise chest X-ray was within normal limits. Pulmonary function studies were interpreted to reveal a mixed lesion with obstruction dominating. The associated "restriction" appeared most likely secondary to air trapping. The diffusion study was within normal limits. There was significant post bronchodilator improvement in FEV-1 suggesting some reversibility. There was disproportionate decrease in maximum minute ventilation, suggesting the possibility of "effort artifact." Arterial blood gases showed normal oxygenation without evidence of carbon dioxide retention. The conclusion stated was that collectively the findings are consistent with longstanding reactive airways disease. The mechanism was said to appear more intrinsic in nature, being triggered by more physical (non-allergic) aggravants. The examiner indicated that a causal relationship between the spontaneous pneumothorax and the onset of reactive airways disease 10 years later can not be established. Private hospital records from 1999 include treatment records showing that the veteran sought emergency treatment in February 1999 for severe asthma and bilateral wheezing and was initially diagnosed with acute exacerbation of asthma and pneumonia. He was subsequently hospitalized in February 1999 for worsening shortness of breath, with a history given that included spontaneous pneumothorax in 1965, which the veteran himself associated with a chemical exposure likely resulting in interstitial pneumonitis. The veteran also gave a history of heavy smoking inservice for approximately 2 years. The impression rendered was acute respiratory distress, most likely secondary to COPD exacerbation. The history of the spontaneous pneumothorax was again given, as well as current evidence of a mild eosinophilia on peripheral smear; however, no opinion was forwarded linking the past pneumothorax to any current lung pathology. Differential diagnoses rendered in this February 1999 hospital report included tuberculosis, eosinophilic granulomatous disease, and or COPD. He was also placed on antibiotics for coverage of community acquired pneumonia. Findings from pulmonary function testing from in 1999 were compatible with severe COPD, with a superimposed restrictive component. Towards the end of February 1999 the veteran was re- hospitalized for breathing problems such as shortness of breath and cough. The emergency center report which diagnosed acute exacerbation of COPD, now included a history alleged by the veteran of pneumothorax in 1965, which he alleged was due to inhaling gases from a volcano while in the armed services. The hospital report's past medical history again mentioned pneumothorax described as "recurrent" several years ago. The assessment again was acute exacerbation of COPD. There is no opinion linking the current lung pathology to the pneumothorax in the records associated with these hospitalizations in February 1999. Analysis In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well-grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet.App. 19, 21 (1993). Secondary service connection may be granted where a service connected disorder causes or aggravates another disorder. 38 C.F.R. § 3.310 (1999); Allen v. Brown, 7 Vet. App. 439 (1995). Significantly, to establish a well-grounded claim for service connection for a disorder on a secondary basis, the veteran must present medical evidence to render plausible a connection or relationship between the service-connected disorder and the new disorder. Jones v. Brown, 7 Vet. App. 134 (1994). Evidence submitted in support of the claim is presumed to be true for purposes of determining whether the claim is well-grounded. King v. Brown, 5 Vet App. 19, 21 (1993). However, lay assertions of medical diagnosis or causation do not constitute competent evidence sufficient to render a claim well-grounded. Grottveit v. Brown, 5 Vet App. 91, 93 (1992); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Upon review of the evidence, the Board finds that the claim for service connection for COPD with bronchial is not well grounded. There are voluminous medical records showing long term treatment for pulmonary pathology, including pneumonia, asthma and COPD. The history of the spontaneous pneumothorax is well documented in these medical records. However, none of these records contain an opinion showing a link between the service connected pneumothorax and any current pulmonary pathology. Furthermore, the opinion from the examiner at the time of the August 1998 VA examination specifically indicated that a connection could not be made between the COPD and the pneumothorax. Because no medical evidence has been submitted showing a link between any currently diagnosed lung pathology, including COPD, pneumonia and asthma and his service connected pneumothorax, this claim for service connection on a secondary basis is not well grounded. Nor is there any competent medical evidence of record which otherwise satisfies the third criteria under Caluza. While the veteran has asserted that there is a causal relationship between his nonservice connected lung pathology and service connected left pneumothorax, this lay assertion does not constitute competent evidence sufficient to render a claim well-grounded. See Grottveitt, Espirutu, Supra. As the veteran has not submitted a well grounded claim in this matter, there is no duty to assist. Where a claim is not well grounded, VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim, but VA may be obligated under 38 U.S.C.A. § 5103(a) (West 1991) to advise a claimant of evidence needed to complete his application. This obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69, 78 (1995). Here, unlike the situation in Robinette, the veteran has not put the VA on notice of the existence of any specific, particular piece of evidence that, if submitted, could make his claims well grounded. See also Epps v. Brown, 9 Vet. App. 341 (1996). Accordingly, the Board concludes that VA did not fail to meet its obligations under 38 U.S.C.A. § 5103(a) (West 1991). ORDER Service connection for COPD with bronchial asthma is denied on the basis that the claim is not well grounded. A. BRYANT Member, Board of Veterans' Appeals