Citation Nr: 18148989 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 17-06 812 DATE: November 8, 2018 ORDER Service connection for emphysema is denied. Service connection for chronic obstructive pulmonary disease (COPD) is denied. REMANDED Entitlement to service connection for pneumothorax is remanded. FINDINGS OF FACT 1. The Veteran has emphysema and COPD, neither of which is an undiagnosed or medically unexplained chronic multi-symptom illness. 2. The law prohibits service connection for a disability on the basis that it resulted from disease or injury attributable to the use of tobacco products during service. 3. Emphysema and COPD were not otherwise incurred in or aggravated by service, to include as a result of in-service exposure to environmental hazards. CONCLUSION OF LAW The criteria for an award of service connection for emphysema and/or COPD have not been met. 38 U.S.C. §§ 1103, 1110, 1117, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1990 to May 1991, to include service in the Southwest Asia theater of operations from December 1990 to April 1991, during the Persian Gulf War. See 38 C.F.R. §§ 3.2(i), 3.317(e). He also had reserve service, to include a period of active duty for training from July to November 1974. His decorations include the Combat Action Ribbon and the Southwest Asia Service Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. 1. Entitlement to service connection for emphysema. 2. Entitlement to service connection for COPD. The Veteran seeks to establish service connection for emphysema and COPD. He acknowledges that he used to smoke cigarettes. He says that he was never a heavy smoker, however, and that he stopped smoking completely within four years of returning from service in Southwest Asia. He feels that his conditions were caused by environmental hazards to which he was exposed during service in Southwest Asia, to include smoke from heavy oil well and burn pit fires. He also points out that his first introduction to cigarettes was as a young Marine, when he was issued his rations. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). If a veteran served in the Southwest Asia theater of operations during the Persian Gulf War, service connection may be established for chronic disability resulting from an undiagnosed illness and/or medically unexplained chronic multi-symptom illness. 38 C.F.R. § 3.317. The disability must have become manifest either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021, and must be such that by history, physical examination, and laboratory tests it cannot be attributed to any known clinical diagnosis. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the present case, there is no dispute that the Veteran has been diagnosed with emphysema and COPD. See July 2010 private treatment records. Nor is there any dispute that the Veteran was exposed to environmental hazards during his service in Southwest Asia. His service records confirm that he was exposed to sand inhalation and smoke from burning oil wells. There is no suggestion in law or otherwise that emphysema or COPD are undiagnosed or medically unexplained chronic multi-symptom illnesses. As such, service connection under the provisions of 38 C.F.R. § 3.317 is not available. The question presented for the Board’s consideration is whether there is a link, or nexus, between the diagnosed conditions of emphysema and/or COPD and the Veteran’s service. As to that matter, the Veteran’s service records reflect that he presented for treatment with complaints of coughing and chest pain in January 1991. The clinical assessment was pleurisy/friction rub. On annual service department examination in June 1997, his lungs were found to be normal. Post-service records reflect that the Veteran had a history of smoking one half to more than one pack per day of cigarettes for 25 to 30 years before quitting in 2004. See February 2006 private treatment records. Private treatment records document a history of COPD secondary to cigarette smoking. In December 2016 and January 2017 reports, a VA examiner opined that it was less than 50 percent likely that the Veteran’s emphysema and COPD were related to environmental exposures in service. The examiner observed that emphysema is a sub-type of COPD and they are essentially the same condition. The examiner noted that the Veteran had a long history of cigarette smoking, that smoking was the main cause of COPD, and that chronic exposure to smoking had a far greater physiologic bearing on the development of COPD/emphysema than the Veteran’s short-term, transient environmental exposures in service during his five-month deployment. The Board finds this opinion probative. The Veteran has not produced a medical opinion to contradict the conclusions of the VA examiner. See 38 U.S.C. § 5107(a) (it is the claimant’s responsibility to support a claim for VA benefits). To the extent that the Veteran asserts that his current emphysema/COPD is related to service, the Board observes that he may attest to factual matters of which he has first-hand knowledge, such as subjective complaints. However, he is not shown to have the requisite medical training or experience necessary to offer competent opinions with respect to the etiology of his pulmonary conditions. As such, his opinions in that regard cannot be accorded any probative weight. In addition, 38 U.S.C. § 1103(a) prohibits service connection for disability on the basis that it resulted from disease or injury attributable to the use of tobacco products during service. This applies to claims, such as the Veteran’s, which were filed after June 9, 1998. In light of the foregoing, the Board must conclude that the preponderance of the evidence is against the Veteran’s claim. The doctrine of reasonable doubt is not applicable, therefore, and the appeal of these issues must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for pneumothorax is remanded. The evidence reflects that the Veteran had a spontaneous pneumothorax of the left chest in 1989 or 1990. He then had another pneumothorax in 1999, followed by surgery. In October 2005, he had an abnormal chest scan. It was noted that it might be related to scar formation following previous lung surgery and previous pneumothoraces. In July 2010, it was noted that he had apical scarring from previous pneumothoraces. The Veteran’s claim for service connection for pneumothorax was denied on the basis that he suffered from spontaneous pneumothorax prior to his Gulf War deployment, that it resulted from heavy smoking, and that it was unrelated to service in the Gulf War. See October 2015 Rating Decision; January 2017 Statement of the Case. However, no medical opinion has been obtained that specifically addresses the etiology of the Veteran’s pneumothoraces. Additional development is required. This matter is REMANDED for the following action: 1. Arrange to have an examiner with appropriate experience review the record and prepare a supplemental report addressing each of the following questions: It is at least as likely as not (i.e., 50 percent or more probable) that the Veteran currently suffers, or has suffered at any time since 2015 (when his claim for service connection was filed), a functional impairment due to past pneumothoraces? If so, please describe the manner and extent to which function has been impaired. If it is at least as likely as not the Veteran has suffered a functional impairment since 2015 due to past pneumothoraces, is it at least as likely as not that the functional impairment is related to his service, to include in-service exposure to environmental hazards? What is the likelihood that the pneumothorax the Veteran suffered in 1989 or 1990, or residuals thereof, increased in severity during the Veteran’s subsequent periods of service beyond the natural progression of the condition and have persisted to the present time? A complete rationale for all opinions expressed must be provided. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time must be allowed for a response. DAVID A. BRENNINGMEYER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.S. Chilcote, Associate Counsel