Citation Nr: 0000551 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 98-06 641A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for the residuals of a status-post spontaneous pneumothorax, left lung. 2. Entitlement to service connection for a respiratory disorder, claimed as chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L.A. Howell, Associate Counsel INTRODUCTION The veteran served on active duty from April 1985 to March 1989. He also had a period of active duty training (ACDUTRA) in July 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the claims on appeal. A hearing was held before a Member of the Board sitting in Montgomery, Alabama, in October 1999. The undersigned Member was designated by the Chairman of the Board to conduct such a hearing. A transcript of the hearing testimony has been associated with the claims file. FINDINGS OF FACT 1. Congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation providing for payment of VA disability compensation benefits. 2. The veteran's spontaneous pneumothorax of the left lung has been identified as a congenital defect, and there is no evidence of a superimposed disease or injury. 3. The veteran's service medical records do not contain any complaints, findings, or diagnoses of COPD. 4. The medical evidence does not relate the current COPD with any event or occurrence on active duty service. 5. The veteran has not submitted evidence of a medical nexus between military service and the currently-diagnosed COPD. CONCLUSIONS OF LAW 1. The claim for entitlement to service connection for the residuals of a status-post spontaneous pneumothorax, left lung, is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991 & West 1999); 38 C.F.R. § 3.303 (1999). 2. The claim for entitlement to service connection for a respiratory disorder, claimed as COPD, is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991 & West 1999); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty or ACDUTRA or for disability resulting from injury incurred in INACDUTRA. 38 U.S.C.A. §§ 101(24), 1110, 1131 (West 1991 & Supp. 1999). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). However, continuity of symptoms is required where the condition in service is not, in fact, chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (1999). In addition, service connection may also 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 U.S.C.A. § 1113(b) (West 1991 & Supp. 1999); 38 C.F.R. § 3.303(d) (1999). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, the threshold question which must be resolved with regard to each claim is whether the veteran has presented evidence that each claim is well grounded; that is, that each claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). A plausible claim is "one which is meritorious on its own or capable of substantiation." Black v. Brown, 10 Vet. App. 279 (1997). The duty to assist under 38 U.S.C.A. § 5107(a) is triggered only after a well-grounded claim is submitted. See Anderson v. Brown, 9 Vet. App. 542, 546 (1996); Peters v. Brown, 6 Vet. App. 540, 546 (1994). Evidentiary assertions by the person who submits a claim must be accepted as true for the purposes of determining whether a claim is well-grounded, except where the evidentiary assertion is inherently incredible or beyond the competence of the person making the assertion. See Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19 (1993). Where the determinative issue is factual rather than medical in nature, competent lay testimony may constitute sufficient evidence to well ground the claim. See Caluza v. Brown, 7 Vet. App. 498, 504 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). For a service-connected claim to be well-grounded, there must be a medical diagnosis of current disability, lay or medical evidence of in-service incurrence or aggravation of a disease or injury, and medical evidence of a nexus between the in-service injury or disease and current disability. See Epps v. Brown, 9 Vet. App. 341, 343- 44 (1996), aff'd, 126 F.3d 1464 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). I. Entitlement to Service Connection for the Residuals of a Spontaneous Pneumothorax, Left Lung In addition to the above, governing regulations provide that congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation providing for payment of VA disability compensation benefits. 38 C.F.R. § 3.303(c) (1999). However, in a precedent decision, VA General Counsel opined that although service connection may not be granted for a defect, service connection may be granted for a disability which is shown by the evidence to have resulted from a defect which was subject to a superimposed disease or injury during service. See VAOPGCPREC 82-90 (1990). Diseases to which there is a familial predisposition may be service connected if otherwise meeting the criteria for service connection. Id.; VAOPGCPREC 67-90 (1990). Medical records reveal that the veteran experienced a left lung spontaneous pneumothorax on July 9, 1996, while on ACDUTRA. After an unsuccessful attempt to reinflate his lung with a tube thoracostomy, he underwent a left lateral thoracotomy on July 19, 1996. By the end of August 1996, he was released from the surgeon's care and was noted to be doing well. By letter dated in January 1997 to the military Flight Surgeon, the private treating surgeon, James D. Hall, M.D., related that at the time of the surgery, multiple blebs involving the left upper lobe were noted and a stapling of the blebs was performed in order to resolve the pneumothorax. Dr. Hall indicated that the veteran's previous spontaneous pneumothorax on the right side (which the record indicated occurred in 1981) with the subsequent presentation of a left spontaneous pneumothorax with multiple blebs was a congenital condition possibly with an acquired component secondary to an extensive smoking history. Dr. Hall specifically opined that he did not believe that the veteran's disorder was related to military service but was, instead, related to some type of predisposing condition. In an undated Narrative Summary, presumably for a Medical Evaluation Board, the Flight Surgeon noted the veteran developed a left lung spontaneous pneumothorax while in active duty training status in July 1996, ultimately requiring a left lateral thoracotomy. A past history of a spontaneous pneumothorax on the right was noted. The Flight Surgeon concluded that the veteran's recurrent spontaneous pneumothorax with underlying pathology of multiple blebs was secondary to a congenital condition and possibly acquired component secondary to a smoking history and recommended disqualification. In a January 1997 service treatment note, the veteran was reportedly fully recovered, was without shortness of breath or chest pain, and had excellent exercise tolerance. He was released to return to work. In March 1997, he filed the current claim. In a May 1997 VA examination report, a past medical history of a spontaneous collapsed lung was noted with subsequent need for surgical intervention. The veteran complained of spasm and pain in the incision and indicated that he could not move his right shoulder. He had trouble breathing, could walk on level ground for 1/4 mile, still had dyspnea with walking fast, could not run or climb small hills, and gave out during sex. He felt smothered whenever he lied down and had to rise to get sufficient air. Physical examination noted a left thoracotomy scar, the lungs were well aerated, respirations were 22 at rest, and lungs were clear. Pulmonary function tests showed severe obstructive lung disease. A chest X-ray showed status post left thoracotomy with surgical clips in the right upper lobe and anterior mediastinum. The final diagnoses included status post surgery for spontaneous pneumothorax and COPD. In an October 1999 hearing before the Board, the veteran testified that he had trouble with his right lung in 1981 but not the left lung. He described feeling poorly while on ACDUTRA and was hospitalized for a collapsed lung. He subsequently underwent surgery. He maintained that his left lung collapsed as a result of being on active duty and had nothing to do with the previous right lung collapse. When asked whether any doctor had told him that, he responded that different doctors had given him different answers and that smoking, his being underweight, and a birth defect of bubbles on the lungs were given as possibilities. He described flying high altitude air drops in the weeks preceding the left lung collapse and had experienced several pressure changes due to opening the doors for jumpers and thought that it could have been a contributing factor. He denied any further problems since 1996. After a review of the evidence, the Board concludes that the veteran's contentions, to the effect that his left lung spontaneous pneumothorax was a result of activities during a period of ACDUTRA, are not supported by the record. As noted above, governing regulations provide that congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation providing for payment of VA disability compensation benefits. 38 C.F.R. § 3.303(c) (1999). Significantly, despite the veteran's characterization during the hearing, a written report from the veteran's private treating surgeon specifically notes that the disorder was due to a congenital tendency and possibly with an acquired component due to an extensive smoking history. This opinion was also accepted by the Flight Surgeon. There is no objective medical evidence to the contrary contained in the claims file. Accordingly, the disorder is not a disability for VA purposes. Further, the Board has also considered a precedent decision from VA General Counsel that, although service connection may not be granted for a defect, service connection may be granted for a disability which is shown by the evidence to have resulted from a defect which was subject to a superimposed disease or injury during service. See VAOPGCPREC 82-90 (July 18, 1990). In this case, medical records are negative for complaints, symptomatology, or findings of chronic residuals from a pre-active duty spontaneous pneumothorax in 1981 and there is no indication of any superimposed disease or injury. The surgery on the lung was to ameliorate the congenital defect, and the residuals are not subject to service connection. See 38 C.F.R. § 3.303 (1999). Based on the evidence of record and the applicable laws and regulations, the Board finds that there is no evidence showing that a left lung spontaneous pneumothorax can be attributable to the veteran's period of service. As noted, it has been identified as a congenital disorder and is, therefore, not a disability for VA purposes. Moreover, there is no evidence of the onset of symptoms or signs or any superimposed condition resulting in additional and chronic disability, and, significantly, the surgeon specifically noted that the disorder was not related to military service. Accordingly, the veteran's claim for service connection for the residuals of a spontaneous pneumothorax, left lung, is not well grounded and is therefore denied. II. Entitlement to Service Connection for a Respiratory Disorder, Claimed as COPD The veteran maintains, in essence, that his COPD is related to the spontaneous pneumothorax which occurred while on ACDUTRA. He asserts that the scars on his lungs from the spontaneous pneumothorax caused the current COPD disorder. Service medical records are negative for complaints, symptomatology, or findings of COPD. Further, post-service medical evidence is negative for treatment or diagnosis of COPD for many years after separation from service. The Board notes that even at the time of treatment for a spontaneous pneumothorax in 1996, during ACDUTRA, there was no clinical evidence noted of COPD. In March 1997, the veteran filed a claim for "respiratory problems." As noted above, in the May 1997 VA examination report, pulmonary function tests showed obstructive lung disease and the diagnosis was severe COPD. Moreover, a radiology report indicated a clinical impression of mild pulmonary emphysema. At the October 1999 hearing before the Board, the veteran testified that he experienced a little shortness of breath if he tried to get active and had been told by the doctors that there was nothing that could be done about the scar tissue. He indicated that the doctor told him that the COPD was the result of surgery for the collapsed lung. He had follow-up checks every six months to one year and was on no medication. Based on the above evidence, the Board finds that the veteran has not provided any credible medical statements that would etiologically link his current COPD with military service or with his collapsed lung while on ACDUTRA. The veteran has only offered his lay opinion concerning its development. There is no competent opinion on file or presented to the effect that his military service caused COPD. The mere contentions of the veteran, no matter how well-meaning, without supporting medical evidence that would etiologically relate his COPD with an event or incurrence while in service, will not constitute a well-grounded claim. Caluza v. Brown, 7 Vet. App. 498 (1995); Lathan v. Brown, 7 Vet. App. 359 (1995); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1994); King v. Brown, 5 Vet. App. 19 (1993). As discussed above, the collapsed lung, and the residuals thereof are not subject to service connection. This finding is supported by the veteran's service medical records which is negative for COPD or any chronic respiratory disorder, except the spontaneous pneumothorax in 1996, which has been shown to be congenital. Further, post-service medical records are negative for treatment or diagnosis of COPD until many years after separation from active duty and there is no evidence that he is receiving current treatment for COPD. Moreover, until he was diagnosed with COPD in 1997, there was no mention of a chronic respiratory disorder, except for the two incidents of spontaneous pneumothorax. In addition, the Board notes that a long smoking history has been noted. Finally, despite the veteran's testimony to the contrary, no examiner has attribute the veteran's COPD to military service or to a congenital spontaneous pneumothorax. For all those reasons, the veteran's claim for entitlement to service connection for a respiratory disorder, currently diagnosed as COPD, is not well-grounded as he has not submitted any competent evidence to demonstrate a medical nexus. In conclusion, the Board has also considered the veteran's written statements and sworn testimony that his spontaneous pneumothorax and COPD are related to military service. Although the veteran's statements are probative of symptomatology, they are not competent or credible evidence of a diagnosis, date of onset, or medical causation of a disability. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); Miller v. Derwinski, 2 Vet. App. 578, 580 (1992). The veteran's assertions are not deemed to be credible in light of the other objective evidence of record showing no medical nexus between military service and his respiratory problems. The veteran lacks the medical expertise to offer an opinion as to the existence of current medical pathology, as well as to medical causation of any current disabilities. Id. Accordingly, the claims must be denied. Where a claim is not well grounded it is incomplete, and VA is obligated under 38 U.S.C.A. § 5103(a) to advise the claimant of the evidence needed to complete his or her application. Robinette v. Brown, 8 Vet. App. 69, 77-80 (1995). In this case, the RO informed the veteran of the necessary evidence in the claims form he completed, in its notice of rating decision and the statement and supplemental statement of the case. That discussion informs him of the types of evidence lacking, which he should submit for well grounded claims. The Board has examined all the evidence of record with a view toward determining whether the veteran notified VA of the possible existence of information which would render his claims plausible. However, the Board finds no such information present. See Beausoleil v. Brown, 8 Vet. App. 459, 464-65 (1996); Robinette v. Brown, 8 Vet. App. 69, 80 (1995). ORDER Entitlement to service connection for the residuals of a status-post spontaneous pneumothorax, left lung is denied on the basis that the claim is not well-grounded. Entitlement to service connection for a respiratory disorder, claimed as COPD, is denied on the basis that the claim is not well-grounded. MICHAEL D. LYON Member, Board of Veterans' Appeal