12-03 437
12-03 437
| Board of Vet. App. | Sep 18, 2017Background
- Appellant served on active duty training Feb 1961–Jan 1962 and was treated in service for recurrent upper respiratory infections and bilateral lobar pneumonia with hospitalization in Aug 1961.
- VA and private records document post-service pulmonary findings including chest CT nodules, scarring/fibrosis, and variable PFTs (including reduced DLCO); smoking history in service is documented.
- Appellant submitted private pulmonologist opinions (Dr. Baaklini) attributing current lung disease (fibrosis, emphysema, asthma) to in-service pneumonia; VA examiners and pulmonary specialists generally found no clear service causation and questioned PFT reliability.
- The Board found a current lung disability (multiple nodules, fibrosis, emphysema) but concluded evidence preponderates against service connection because VA examiners’ opinions and the claimant’s smoking history undercut the private doctor’s opinions.
- Appellant is not service-connected for any disability; because there are no service-connected disabilities, entitlement to TDIU was denied as ineligible.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for lung disability (residual of bilateral lobar pneumonia) | Appellant: current lung disease (fibrosis, emphysema, asthma, nodules) is related to in-service pneumonia per treating pulmonologist | VA: VA examiners and pulmonary specialists found no nexus to service; PFT/CT interpretations, smoking history, and unreliable test effort undermine causation | Denied — preponderance of evidence against service connection; Board afforded benefit of doubt only to diagnosis, not to service causation |
| TDIU (total disability based on individual unemployability) | Appellant: seeks TDIU based on claimed service-connected lung disability | VA: No service-connected disabilities currently established, so statutory/regulatory criteria for TDIU not met | Denied — claimant has no service-connected disability, so TDIU unavailable |
Key Cases Cited
- Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir.) (nexus requirement for service connection)
- Gilbert v. Derwinski, 1 Vet. App. 49 (Vet. App.) (benefit-of-the-doubt doctrine)
- Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (Vet. App.) (weight of medical opinion may be reduced when examiner fails to review claims folder and misstates medical history)