Citation Nr: 1118259 Decision Date: 05/12/11 Archive Date: 05/17/11 DOCKET NO. 08-23 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a lung disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from May 1953 to May 1955 and from June 1956 to July 1965. He had additional service with the Army Reserves from May 1955 to June 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for service connection for a lung disability. The Veteran testified before the Board in March 2011. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, the evidence shows it is at least as likely as not that the Veteran's lung disability is related to exposure to missile fuel in active service. CONCLUSION OF LAW A lung disability was incurred in service. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). Disability which is proximately due to or the result of a disease or injury incurred in or aggravated by service will also be service-connected. 38 C.F.R. § 3.310 (2010). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Degmetich v. Brown, 104 F. 3d 1328 (1997); Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection for certain chronic diseases will be rebuttably presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). The Veteran's lung disability, however, is not a disease that is subject to presumptive service connection. Service connection may 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (2010). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2010). Service connection may also be granted for a disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.30(d) (2010). The Veteran asserts service connection for a lung disability on the basis that he worked as a fueler on a missile fueling crew during service. During testimony before the Board at a March 2011 videoconference, the Veteran reported that his duties during service involved actually handling the fueling hoses and connecting them to the missiles to ensure that the JP-4 fuel was properly loaded into the missiles. He also maintained that he had not been issued a respirator during service but instead wore a rubber suit with a hood that was open all the way around. He testified that the fuel vapors got into his hood and stayed in a trap under the hood unless he pulled off the trap and shook it out. The Veteran reported an incident during service where a missile site exploded in New Jersey. He stated that as a result of that accident, his crew had to remove the warheads and defuel all of their missiles for an inspection team and then refuel and reinstall the warheads of the missiles after the inspection. He testified that at least 15 to 20 missiles had had to be defueled and refueled for the inspection, causing him to be exposed to a large quantity of missile fuel at that one time. Service medical records are negative for any complaints or treatment for a lung disability. At a June 1965 Medical Board proceeding for the amputation of the Veteran's right thumb, the Veteran's lungs were found to be within normal limits. He was found to be unfit for continued military service due to the amputation of his right thumb and was subsequently discharged from service. Despite the lack of complaints or treatment for a lung disability during service, the Veteran's military occupational specialty from May 1962 to July 1965 was that of a missile crewman. The Board notes that exposure to missile fuel is consistent with the duties and circumstances of being a missile crewman. Therefore, the Board concedes the occurrence of the in-service exposure to missile fuel. Post-service VA and private medical records dated from February 2003 to June 2007 show that the Veteran received intermittent treatment for obstructive sleep apnea, prominent coarse crackles in the lung fields, minimal end expiatory wheeze, right lower lobe infiltrate, chronic obstructive pulmonary disease (COPD), history of fat emboli syndrome, pulmonary emboli, chronic obstructive asthma, purulent bronchitis, double pneumonia, and pulmonary fibrosis. The Veteran underwent a permanent tracheostomy in July 2004 for his obstructive sleep apnea. A March 2005 x-ray of the chest indicated extensive pleural scarring with some parenchymal scarring. In a November 2007 letter, the Veteran's private cardiothoracic surgeon reported that he had performed a rigid bronchoscopy on the Veteran in October 2007 in which he had found severe granulation tissue that he did not think he could treat endobronchially. The surgeon stated that he felt the Veteran to be at significant risk for a tracheal resection due to his age and poor lung functions. He considered the possibility of de-cannulating the Veteran without a resection. He maintained that the Veteran might also have tracheomalacia, which would involve the risky procedure of putting a stent in him. The surgeon acknowledged that the Veteran had terrible lungs and had been exposed to rocket fuel in service, but also noted that the Veteran had smoked two packs of cigarettes a day for 50 years. The surgeon reported that smoking two packs of cigarettes a day for 50 years was a lot worse than being exposed to some rocket fuel, but found that it was possible that the two factors were synergistic. The surgeon opined that it was certainly possible that the rocket fuel exposure was the cause of the Veteran's severe COPD but concluded that there was really no way to determine the definitive etiology of the COPD since the Veteran had been a smoker. The Veteran's private treating physician indicated in a February 2008 letter that he had treated the Veteran from September 2000 to May 2005 for pulmonary problems, including a fat embolism following a knee replacement surgery, underlying chronic bronchitis with a restrictive pattern on pulmonary function tests, mild obstructive airways disease, significant diffusion defect, 69 percent predicted lung capacity, obstructive sleep apnea, and an emergency tracheostomy. The physician noted that the Veteran had a history of smoking and asbestos exposure. The physician opined that it was possible that the Veteran's exposure to J4 missile fuel could have contributed to the damage of his lungs. In a December 2008 VA treatment record, the Veteran's treating physician noted that the Veteran had a history of working with guided missiles in 1956 where the fueling crew worked with JP-4 and Hydrazine with nitric acid for propulsion systems. The physician also observed that the Veteran had smoked for 50 years at over two packs per day but that he had quit smoking 6 years previously. The Veteran reported that respirators were not provided to him when he was working with the rocket fuels in service. He maintained that the fumes of the fuel got under the hood that he was provided to wear. He complained that he currently coughed up a lot of mucous and that when he cleaned with the vacuum system, the sputum was sometimes hard and looked like old blood. He stated that he had shortness of breath with limited activity and that he could not walk a few feet or even tie his shoes without getting out of breath. Examination revealed crackles, wheeze, and rhonchi in the lungs. An October 2008 chest x-ray showed moderate to marked COPD associated with bilateral calcified pleural plaques that indicated possible previous exposure to asbestos. The physician diagnosed the Veteran with chemical pneumonitis with residual sequelae, COPD, pulmonary fibrosis, status post permanent tracheostomy, and asbestosis. The physician opined that the Veteran's chemical pneumonitis with sequelae was due to exposure to rocket fuels from service and noted that a December 2008 complete pulmonary function test had revealed significant impairment that was consistent with this diagnosis. The physician explained that although the Veteran had a history of chronic cigarette smoking, he had quit smoking over six years previously but still had significant disabling pulmonary symptoms. The physician found that based on reasoned medical opinion, those pulmonary symptoms were more likely and more certainly related to exposure to rocket fuel with poor protection devices. In an October 2009 follow-up visit, the VA physician reported reviewing the Veteran's claims file and service reports. The Veteran was diagnosed with COPD status post tracheostomy, asbestosis, and obstructive sleep apnea. An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). The Board is inclined to place less probative value on the November 2007 and February 2008 private medical opinions. The November 2007 cardiothoracic surgeon opined that it was certainly possible that the rocket fuel exposure was the cause of the Veteran's severe COPD but concluded that there was really no way to determine the definitive etiology of the COPD since the Veteran had also been a smoker. The February 2008 private physician opined that it was possible that the Veteran's exposure to J4 missile fuel could have contributed to the damage of his lungs. The Board finds that the November 2007 medical opinion is speculative, in that the physician found that it was certainly possible that rocket fuel exposure caused the Veteran's COPD, but concluded that there was no way to determine the definite etiology of the COPD. Similarly, the February 2008 medical opinion is speculative because the physician found that it was possible that the exposure to missile fuel could have contributed to the Veteran's lung damage. A finding of service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102 (2010); Bloom v. West, 12 Vet. App. 185, 186-87 (1999) (treating physician's opinion that Veteran's time as a prisoner of war "could" have precipitated the initial development of his lung condition found too speculative); Tirpak v. Derwinski, 2 Vet. App. 609 (1992) (medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of a claimed disorder or any such relationship). Additionally, the Board finds that the February 2008 medical opinion is not supported by adequate rationale, as the physician does not explain why he thought that it was possible that the fuel exposure contributed to the Veteran's lung damage. If the examiner does not provide a rationale for the opinion, this weighs against the probative value of the opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). The Board instead assigns greater weight to the December 2008 VA medical opinion relating the Veteran's chemical pneumonitis with sequelae to his exposure to rocket fuels during service. In placing greater weight on the December 2008 medical opinion, the Board notes that in rendering the opinion, the physician explained why it was more likely that the Veteran's exposure to missile fuel caused his current lung disability rather than his history of cigarette smoking. The Board therefore finds that the opinion is probative and persuasive based on the physician's thorough and detailed examination of the Veteran, comprehensive review of the claims file, adequate rationale, and consideration of the Veteran's lay statements in regards to his disabilities. Because the evidence shows that the Veteran's lung disability was at least as likely as not related to his period of service, the Board finds that service connection for a lung disability is warranted. All reasonable doubt has been resolved in favor of the Veteran in making this decision. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a lung disability is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs