Citation Nr: 1337855 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 08-19 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a respiratory disorder. REPRESENTATION Appellant represented by: Sheldon Gilbert, Attorney ATTORNEY FOR THE BOARD Rutkin, Joshua M. INTRODUCTION The Veteran served on active duty from April 1958 to April 1960. He also had a period of service in the U.S. Army Reserves with a termination date of April 9, 1964, with probable unverified periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This case returns to the Board of Veterans' Appeals (Board) from the United States Court of Appeals for Veterans Claims (Court) which, in a January 2013 Order, endorsed a joint motion for remand, vacated the August 2011 Board decision denying the claim, and remanded the claim for compliance with the instructions in the joint motion. The appeal originates from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. A service connection claim for tinnitus was also on appeal before the Board and remanded in August 2011 for further development. During the pendency of the remand, service connection for tinnitus was granted in a December 2011 rating decision. The Veteran has not appealed this decision with regard to the rating or effective date assigned. Therefore, this claim is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). The Board also remanded the issue of whether a higher initial rating was warranted for the Veteran's service-connected bilateral hearing loss with instructions to provide a Statement of the Case (SOC). See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The Veteran since withdrew this issue in a December 2011 statement without perfecting the appeal. See 38 C.F.R. §§ 20.200, 20.202 (2013). Thus, this issue is not before the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's respiratory disorder, diagnosed as chronic obstructive pulmonary disease (COPD), was incurred in active service as a result of exposure to welding fumes. CONCLUSION OF LAW The criteria for entitlement to service connection for COPD have been satisfied. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that his COPD was caused by exposure to welding gases during active service. For the following reasons, the Board finds that service connection is warranted. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection requires evidence showing (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); C.F.R. § 3.303(a). Here, a current diagnosis of COPD is established by private treatment records dated in 2004 and 2005, and a September 2010 VA examination report, thereby satisfying the first Shedden element. The second Shedden element is also satisfied, as there is credible evidence the Veteran was exposed to welding fumes in service. Specifically, the service personnel records reflect that the Veteran served as a metal worker in training (which the Board assumes involved welding) and welder (beginning July 1958) for most of the two years of his period of active service. He denied using respiratory protection while welding during this period. The service personnel records also show that he continued to serve as a welder during his Army Reserve service. At this time he only wore a shield to protect his face, according to his July 2013 statement. Thus, the Board finds that the Veteran was exposed to welding fumes in service. With regard to the third Shedden element, the probative evidence supports a relationship between the Veteran's COPD and his exposure to welding fumes during active service. An October 2013 letter from the Veteran's private treating physician, S. John, M.D., who diagnosed COPD in an April 2005 treatment record, states that the Veteran's COPD was "most likely due to welding fumes exposure" during his military service. The physician noted that the Veteran did not have a known history of smoking or other exposure that would adversely affect his lung function. The Veteran also submitted a number of scientific articles and reports showing a strong association between the development of COPD and occupational exposure to welding fumes based on statistical and medical studies. One article states that "for many years researchers have known that chronic exposure to fumes, chemical substances, and dusts in the work place are one of the main risk factors for the development of COPD," and that welding fumes were among the most important of these environmental risk factors. Viegi G., Thematic Review Series: Epidemiology of Chronic Obstructive Pulmonary Disease (COPD). 68 RESPIRATION 2001, at 4-19. Another article states that physical studies of a select group of welders showed a "significant association" between "obstructive pulmonary function indices" and exposure to welding fumes based on physical studies of the lungs, which "supported the hypothesis that chronic accumulation of welding fumes is related to obstructive changes in pulmonary function." Nakadate T., Aizawa Y., Yagami T., et al., Change in Obstructive Pulmonary Function as a Result of Cumulative Exposure to Welding Fumes as Determined by Magnetopneumography in Japanese Arc Welders, 55 OCCUPATION AND ENVIRONMENTAL MEDICINE (OEM) 1998, at 673-677. A comprehensive report on COPD states that 31% of cases of COPD in nonsmokers may be attributable to occupational dust and fume exposure, and that "many occupations have been shown to be associated with increased risk of developing COPD, particularly those that involve exposure to fumes" and dusts. Global Strategy for the Diagnosis, Management, and Prevention of Chronic Obstructive Pulmonary Disease, 2006, GLOBAL INITIATIVE FOR CHRONIC OBSTRUCTIVE LUNG DISEASE. Finally, an article on COPD prevalence and its association with occupational exposures found a "significant association" between COPD symptoms and welding. Melville A., Pless-Mulloll T., et al. COPD Prevalence and its Association with Occupational Exposures in a General Population." 36 EUROPEAN RESPIRATORY JOURNAL 2010, at 488-493. The articles and studies discussed in the preceding paragraph all constitute probative evidence of a strong association between COPD and exposure to welding fumes based on statistical and medical studies, thus supporting the October 2013 letter by Dr. John asserting that the Veteran's COPD was most likely due to exposure to such fumes as a welder during active service, given the absence of other risk factors. See Sacks v. West, 11 Vet. App. 314, 317 (1998) (observing that medical articles or treatises can provide important support for a claim if combined with an opinion of a medical professional, or when discussing general medical relationships with a degree of certainty such that, under the facts of a specific case, there is at least a plausible argument for causality based upon objective facts). Indeed, an April 2005 private treatment record reflects that when Dr. John initially diagnosed COPD, he inquired into whether the Veteran had a history of chemical or environmental exposures, which further reinforces a relationship between such exposure and the development of COPD. The Board has considered the VA examiner's opinion in the September 2010 VA examination report, which found against a relationship between the Veteran's COPD and his exposure to welding fumes as the literature did not reveal any "known significant respiratory damage from brief exposures in non-smoking welders." The Board discounts the weight of this opinion, as there is no indication that the Veteran's exposure was "brief" in light of his service as a welder for nearly two years without respiratory protection. Moreover, the above-cited articles and treatises do not state that there must be a certain degree or length of exposure to welding fumes before they become a significant factor in the development of COPD. Indeed, the Veteran's treating physician found that the Veteran's exposure would be sufficient in this regard. Thus, the September 2010 VA opinion is outweighed by the October 2013 opinion by Dr. John and the treatise evidence discussed above. There is no evidence that the Veteran had significant civilian exposure to welding fumes. Moreover, as noted in the October 2013 letter, he did not have a history of other known risk factors for developing COPD prior to, or after, his service in the Army. Accordingly, resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for COPD as a result of exposure to welding fumes during active service. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Shedden, 381 F.3d at 1166-67; 38 C.F.R. § 3.303(a). Because this claim has been granted, any questions as to whether VA has satisfied its duties to notify and assist are moot. See Vogan v. Shinseki, 24 Vet. App. 159, 163 (2010) (observing that an error that does not affect the outcome of a case is not prejudicial); Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009); see also 38 C.F.R. § 3.159 (2013). ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs