Citation Nr: 18146151 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 14-10 826 DATE: October 31, 2018 ORDER Service connection for chronic obstructive pulmonary disease (COPD), is denied.   FINDING OF FACT The Veteran’s COPD did not have its onset during service and is not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for COPD have not been met. 38 U.S.C. §§ 1103, 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.300, 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1986 to May 1991. The case is on appeal from an April 2012 rating decision. In November 2015, the Veteran testified at a Board hearing. Thereafter, in December 2016, the Board issued a decision denying service connection for COPD, and the Veteran subsequently appealed this decision to the United States Court of Appeals for Veterans Claims (Court). The parties to this appeal entered into a July 2017 Joint Motion for Remand (Joint Motion), and, in an Order dated later in July 2017, the Court granted the Joint Motion and remanded the case back to the Board. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service connection for COPD, to include as due to an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI). Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In addition, a veteran who served in the Southwest Asia Theater during the Persian Gulf War and exhibits objective indications or symptoms of a qualifying undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI), so long as the objective symptoms occurred either during service in the Southwest Asia Theater or manifested to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. A MUCMI is a diagnosed illness without conclusive pathophysiology or etiology, defined by a cluster of signs or symptoms and specifically includes functional dysphagia, vomiting, and substernal burning. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Factual and Procedural History The Veteran contends that he has COPD due to exposure to environmental hazards during service in Southwest Asia. In this regard, during the November 2015 Board hearing, he testified that he drove diesel fuel trucks during service in Saudi Arabia and Iraq in Operation Desert Storm. The Veteran also reported that he was exposed to burning human waste at camp sites, burning debris including vehicles, and fumes from diesel fuel sprayed to make landing strips for aircraft without aid of a respirator. He characterized his exposure to inhalation of hazards as “nonstop” during such service. The Veteran further stated that he noticed onset of difficulty breathing in early 1992 and 1993. The Veteran’s service personnel records (SPRs) reflect that he served as a motor transport operator and in Southwest Asia from September 1990 to April 1991. His service treatment records (STRs) do not show any reports of, or treatment for, breathing difficulty during his service. The Veteran was afforded a VA examination in regard to this claim in the April 2012. The examiner reported that the Veteran has COPD. He explained that COPD is not a diagnosed medically unexplained illness or chronic multi-symptom illness with a partially explained etiology. The examiner noted the Veteran was a truck driver and stated that the Veteran reported not being around burn pits during service. The examiner also noted that the Veteran started smoking at the age of 17 and smoked about one pack per day until the age of 46. The examiner found that the Veteran’s COPD was not caused by or a result of the Veteran’s military service. He explained that the Veteran’s COPD was caused by smoking cigarettes and that he was not near burn pits during service. Later in April 2012, the Veteran submitted a notice of disagreement (NOD). In the NOD, the Veteran noted that, while he was not around any oil well fires, he was a truck driver throughout Saudi Arabia and Iraq. In November 2015, the Veteran submitted a medical opinion from a private physician. After reviewing the Veteran’s STRs and post-service treatment records, the physician found that his COPD is at least as likely as not caused by exposure to multiple inhalation hazards during service in Operation Desert Storm. The physician explained that the Veteran was exposed to petroleum, wastes, and burn pits during such service. Subsequently, in February 2016, the Board requested an additional medical expert opinion on the issue of causation from the Veterans Health Administration (VHA) pursuant to 38 C.F.R. § 20.901, which was received in July 2016. The claims file and the Veteran’s medical records were reviewed. The expert considered both the Veteran’s exposure to environmental hazards during service and his smoking history. The expert also outlined relevant treatment notes relating to the Veteran’s COPD. The expert opined that it was less likely than not that the Veteran’s COPD began during, or was otherwise related to, his military service. The rationale provided was that the Veteran was diagnosed with COPD “long after military service.” The examiner stated that it was unlikely that his deployment to Southwest Asia for seven months caused the Veteran’s COPD, and that exposure to a specific environmental hazard known to cause COPD was not documented. The expert explained that, upon the initial encounter of the Veteran and a private physician in October 2004, the physician stated there was no significant prior medical history or patient complaint as such there was no objective evidence before 2003 or 2004 that the Veteran had a chronic lung condition. The expert further explained that cigarette smoke was the single biggest risk factor for COPD and that 80 percent of diagnosed COPD cases are patients with cigarette smoking history, with the other 20 percent being nonsmokers with genetic, environmental, or occupational predisposition. Thereafter, in December 2016 the Board denied the claim on the basis of the April 2012 and July 2016 VHA examiner opinions. The Board found that the Veteran’s signs and symptoms have been attributed to COPD and, therefore, service connection was not warranted on the basis of the presumptive provisions pertaining to service in Southwest Asia under 38 C.F.R. § 3.317. The Board also found that both the April 2012 VA and July 2016 VHA examiners’ conclusions regarding the etiology of the COPD to be more probative than the November 2015 private physicians opinion. The July 2017 Joint Motion found that the Board erred in relying on the April 2012 and July 2016 VHA examiner opinions because they were based on an inaccurate factual premise. Specifically, such opinions partly relied on the April 2012 examiner’s statement that the Veteran denied being exposed to burn pits during Desert Storm when the Veteran later reported that he was exposed to burning debris and other environmental hazards. Subsequently, the Board obtained a VHA opinion from a VA pulmonologist and critical care physician, in March 2018 with a May 2018 addendum opinion. This action was taken to fully address the concerns of the July 2017 Joint Motion, particularly as the claim pertains to exposure to environmental hazards such as burn pits. The pulmonologist was asked to provide a medical opinion regarding direct service connection accepting the Veteran’s reported history of being exposed to burn pits, as well as burning debris and spraying diesel fuel without a respirator during service. Based on this factual predicate and the Veteran’s claims file, the examiner found that it is much less likely than not that his COPD is related to service. He explained that the Veteran has a clearly documented history of smoking one or two packs of cigarettes per day for 29 years. The examiner reported that cigarette smoking is, overwhelmingly, the most common cause of COPD. He also noted that the Veteran’s exposure to respiratory hazards during military service was during a short period of nine months. The examiner concluded that the Veteran’s reports of exposure to pits of burning waste and diesel fumes do not suggest an environmental exposure of an intensity or duration that would be reasonably expected to result in a chronic lung injury. Analysis The Board finds that the May 2018 pulmonologist’s VHA expert medical opinion is clear and unequivocal and is based the relevant information, including the Veteran’s statements and medical records, and taking as accurate that the Veteran was exposed to burn pits and diesel fumes during service without a respirator. Moreover, the examiner provided a logical explanation for the conclusions reached. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this regard, he examiner explained that the Veteran regularly smoked cigarettes for many years and that such behavior is the most common cause of COPD. He also explained that the nature of the environmental exposures reported by the Veteran during the duration of his service in Operation Desert Storm would not reasonably result in development of COPD. The Board finds this explanation to be logical and follows from the facts and information given. Thus, his conclusion that it is less likely than not that the Veteran’s COPD had its onsets during service or are otherwise related to service to be highly persuasive and probative evidence. In addition, because the Veteran’s symptoms have been attributed to a known clinical diagnosis, COPD, the claimed disability is not an undiagnosed illness. In this regard, COPD is not a MUCMI because the pathology of COPD is explained or partially explained in the medical opinion evidence of record. 38 C.F.R. § 3.317; see also DAV v. Sec’y of Veterans Affairs, 859 F.3d 1072 (Fed. Cir. 2017). As such, the presumptive provisions pertaining to service in the Persian Gulf under 38 C.F.R. § 3.317 are not applicable to this claim. Furthermore, to the extent smoking had its onset in service, service connection is prohibited based on the effects of tobacco products. See 38 U.S.C. § 1103; 38 C.F.R. § 3.300. While the Veteran believes that his COPD is due to exposure to environmental hazards during Operation Desert Storm, this is a complex medical question outside the competence of a non-medical expert to determine whether such a cause-and-effect relationship exists in this particular case. Thus, this nexus question requires expert consideration and cannot be considered within the competence of a non-expert lay witness. The Veteran, as a lay person, has not established the competence needed to rebut expert medical opinion. See Fountain v. McDonald, 27 Vet. App. 258, 274-75 (2015); Monzingo, 26 Vet. App. at 106. As such, his opinion is not adequate to rebut the May 2018 pulmonologist’s opinion, nor is it otherwise sufficiently probative to be considered competent evidence tending to increase the likelihood of a positive nexus between his COPD and service. See Fountain, 27 Vet. App. at 274-75. Furthermore, while the Veteran provided a positive nexus statement from a private physician in November 2015, the Board finds that this opinion is less probative as to the etiology of his COPD than the May 2018 VHA addendum opinion. In this regard, the May 2018 pulmonologist’s opinion considered the Veteran’s in-service environmental exposure and explained why he found that it was more likely that the Veteran’s COPD was due to smoking. However, the private physician did not address the Veteran’s history of smoking in his opinion or explain why he found that it was as likely as not that the Veteran’s COPD was caused by exposure to environmental hazards. Therefore, the physician’s opinion is outweighed by the May 2018 pulmonologist’s opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Accordingly, the preponderance of the evidence is against the claim of service connection for COPD on both a direct and presumptive basis. Therefore, the benefit-of-the-doubt doctrine is not applicable and service connection for COPD is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. RYAN T KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Jimerfield, Associate Counsel