Citation Nr: 18159239 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 09-33 637 DATE: December 19, 2018 ORDER Entitlement to service connection for a lung disability, to include chronic obstructive pulmonary disease (COPD), is denied. REMANDED Entitlement to service connection for tinnitus is remanded. FINDING OF FACT The Veteran did not have a lung disability, to include COPD, which was incurred in or was otherwise causally related to his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for COPD have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.303, 3.304 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from August 1963 to July 1967. He was the recipient of the Air Force Good Conduct Medal. He died in February 2013. The appellant is his daughter, who has been substituted as the claimant. See December 2014 notification letter. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board remanded this matter in May 2018. A Supplemental Statement of the Case (SSOC) was issued in October 2018. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. “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) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Lung Disability, to include COPD The Board finds that the preponderance of the evidence is against the award of service connection for a lung disability, to include COPD. During his lifetime, the Veteran had contended that he developed his diagnosed COPD as a result of breathing JP-4 fuel fumes and/or exposure to extremely cold weather while on active duty. An April 2012 notation in the Veteran’s VA medical records indicates that he was exposed to “airplane fumes during service in Vietnam.” However, there is no indication, nor is it contended, that the Veteran served in the Republic of Vietnam. Indeed, his service personnel records reveal that he did not serve in Vietnam. The Board affords greater probative weight to his personnel records than a notation in the Veteran’s VA medical records, made decades after the fact, and finds that the Veteran did not serve in the Republic of Vietnam. Nonetheless, the Board notes that the Veteran’s service personnel records reflect that he served as a weapons systems security guard, a position consistent with possible exposure to jet fuel fumes, and that he served at Goose Air Base, Canada, a location consistent with possible exposure to extremely cold weather. Service treatment records show that on an April 1967 Report of Medical History, the Veteran endorsed shortness of breath and pain or pressure in chest. The examiner noted that this referred to occasional substernal chest pain unrelated to effort. He was noted to smoke six to eight cigarettes per day. EKG performed that day was normal. There were no complications or sequelae. Indeed, his April 1967 separation examination physical examination was normal, including of the lungs and chest. An associated chest X-ray was negative. In pertinent part, the post-service record on appeal includes a September 2010 medical opinion from Dr. Y.P., who indicated that the Veteran had a long-standing history of COPD. He noted that the Veteran had reported a history of exposure to exhaust and chemical fumes while on active duty as a guard near B-52 aircraft. He further reported that he began to experience difficulty breathing in the 1990s when he was diagnosed with COPD. Because of the timeline involved, Dr. Y.P. indicated that it was difficult to say how much chemical exposure in the 1960s contributed to his current COPD. It was explained that it is well known that COPD is a result of cumulative damage to the lungs; thus, Dr. Y.P. agreed that prior military service was a contributing factor to his COPD. After carefully considering this evidence, the Board assigns it low probative weight. It is well established that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. See e.g. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (finding doctor’s opinion that “it is possible” and “it is within the realm of medical possibility” too speculative to establish medical nexus); Goss v. Brown, 9 Vet. App. 109, 114 (1996) (using the words “could not rule out” was too speculative to establish medical nexus); Warren v. Brown, 6 Vet. App. 4, 6 (1993) (medical opinion expressed only in terms such as “could have been” is not sufficient to reopen a claim of service connection); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical opinion framed in terms of “may or may not” is speculative and insufficient to support an award of service connection for the cause of death); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (a generic statement about the possibility of a link between chest trauma and restrictive lung disease was “too general and inconclusive” to support an award of service connection). The speculative nature of the September 2010 letter reduces its probative value. Thus, the Board remanded this matter in May 2018 to obtain a medical opinion regarding the nature and etiology of the Veteran’s COPD. Such an opinion was obtained in October 2018. The claims file was reviewed. The VA physician opined that it was less likely than not that the Veteran’s COPD was related to his active service, to include exposure to fumes and cold weather. Rather, it was more likely than not that the Veteran’s COPD was the result of smoking tobacco. It was explained that COPD is a lung disease characterized by airflow limitation with incomplete reversibility which is both progressive and results from a chronic inflammatory response to genetic and environmental factors, including cigarette smoke, that results in obstruction, small airway fibrosis, and destruction of lung parenchyma. COPD is primarily comprised of three related conditions: chronic bronchitis, asthma, and/or emphysema. Smoking is responsible for 90 percent of COPD cases in the United States. It is estimated that 15 percent of smokers will develop COPD. Other causes include intravenous drug use, Alpha 1-antitrypsin deficiency, immunodeficiency syndrome, and connective tissue disorders. The Veteran was noted to have a long history of smoking, which began at age 16, prior to his active service. It was likely he also had exposure to second-hand smoke, as his father had emphysema. There was no history of the other noted causes of COPD. While there was history of substance abuse, but there was no indication that such included intravenous drug use. While the Veteran claimed that cold weather caused him to develop COPD, the VA physician explained that, while cold weather can exacerbate COPD by causing airway restriction, medical literature does not support that exposure to the cold can cause COPD. In any event, it was also noted that there was no indication that the Veteran had required treatment while on active duty for any acute respiratory condition due to cold weather exposure. With respect to the Veteran’s contention that exposure to jet fuel caused his COPD, the VA examiner noted that there was no evidence regarding the time or amount of exposure to jet fuel or other chemicals. Without such data, the VA examiner could not provide an opinion without resorting to speculation. In any event, studies have shown that JP-8 vapors and aerosols can result in acute pulmonary inflammation and alterations in pulmonary functions, but there were no reliable studies of humans exposed to JP-5, JP-8 or Jet A fuels developing chronic respiratory conditions. Rather, there was no difference in incidence of respiratory illness between exposed and non-exposed groups. Further, the VA examiner noted that there was no evidence of in-service treatment for an acute respiratory condition related to exposure to jet fuel or other chemicals. It was unlikely that one would develop chronic disability without experiencing acute symptoms of exposure at the time of such exposure. In any event, because a more likely cause of COPD in the Veteran’s case had been identified, smoking, it was highly unlikely that COPD was related to fuel exposures. The Board finds the October 2018 VA medical opinion highly probative because it considered the Veteran’s medical history, the relevant in-service records, and medical literature regarding COPD, addressed all theories of contention, was well-reasoned, and was consistent with the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Board has considered the Veteran’s lay history of symptomatology related to his claimed disorder throughout the appeal period. He was competent to report such symptoms and observations because this requires only personal knowledge as it comes through an individual’s senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran in this case was not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and were not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. The Board finds the October 2018 VA medical opinion to be of greater probative weight than the Veteran’s lay assertions. The Board notes that the Veteran reported that he was told by a Dr. W. that his lungs looked like swiss-cheese because of exposure to jet fumes. See December 2009 Statement in Support of Claim. However, there is no such notation in the evidence of record. In November 2009, a pulmonary consult note by Dr. W. indicates that includes an assessment of severe COPD. Dr. W. noted that a February 2009 radiology report revealed marked hyperexpansion of lungs with large emphysematous bulla in the mid and lower lungs. Indeed, the October 2018 VA examiner noted this lay contention and explained that the likely cause of any appearance of the lungs which could be described as “swiss cheese” was the emphysematous blebs/bulla noted on X-rays. In any event, a claimant’s lay statements relating what a medical professional told him, filtered as they are through a layperson’s sensibilities, are too attenuated and inherently unreliable to constitute competent evidence to support a claim. See e.g. Warren v. Brown, 6 Vet. App. 4 (1993). The Board has also considered the fact that the service treatment records document the Veteran’s tobacco use during active duty. For claims such as this one, however, filed after June 9, 1998, a disability or death will not be considered service-connected on the basis that it resulted from disease or injury attributable to the use of tobacco products during a veteran’s active service. 38 U.S.C. § 1103(a); 38 C.F.R. § 3.300(a); VA O.G.C. Prec. Op. No. 19-97 (May 13, 1997), 62 Fed. Reg. 37,954 (1997). Thus, the Veteran’s use of tobacco during active duty does not provide a basis upon which to grant the claim. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND In May 2018, the Board remanded the issue of entitlement to service connection for tinnitus in order to obtain a medical opinion regarding the nature and etiology of such. The examiner was to “include rationale with all opinions, acknowledging the Veteran’s December 2008 statement, explaining his conflicting statement on the June 2008 examination.” A VA medical opinion was thus obtained in October 2018. The claims file was reviewed. The VA examiner opined that it was less likely than not that the Veteran’s tinnitus was incurred in or otherwise causally related to his service. The VA examiner compared the Veteran’s enlistment and separation hearing test results and noted that there were no threshold shifts. Rather, hearing acuity was essentially unchanged bilaterally. The VA examiner explained that such objective testing revealed that the Veteran did not experience a noise injury during his active service. Without such an in-service noise injury, the VA examiner opined that it was less likely than not that tinnitus was the result of in-service military noise exposure. The VA examiner also stated that “VBMS [the Veterans Benefits Management System] did not reveal any documentation or complaints related to tinnitus.” This opinion is unfortunately inadequate as the VA examiner did not acknowledge the Veteran’s lay statements, as requested in the May 2018 remand directive. Further, it is based on an inaccurate factual premise insofar as the VA examiner concluded that there were no complaints of tinnitus in the claims file, which is electronically stored in VBMS. Indeed, in the May 2018 remand, the Board noted that the appellant contended during his June 2008 VA examination that his tinnitus was related to B-52 noise and that he began to experience such two to three years prior to examination. In his January 2009 NOD, he reported that he first experienced tinnitus while on active duty, such continued intermittently, and built to a constant ringing over the years. In an April 2010 VA examination, the appellant reported that his tinnitus may have begun in 1984. Compliance with remand directives by the originating agency is not optional or discretionary. The Board errs as a matter of law when it fails to ensure remand compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Additionally, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (a medical opinion which relies on the absence of contemporaneous medical evidence, and fails to consider whether lay statements present sufficient support of the etiology of the claimed disability, is inadequate). The matter is REMANDED for the following action: 1. Obtain a medical opinion from a suitably qualified clinician regarding the nature and etiology of the Veteran’s tinnitus. Access to the claims file should be made available to the examiner for review. After reviewing the record, the examiner should provide an opinion, with supporting rationale, as to whether it is at least as likely as not that tinnitus was etiologically related to the Veteran’s active service. VA has conceded in-service noise exposure. See e.g. May 2010 rating decision. The examiner’s attention is directed to (a) the June 2008 VA examination report, which states that the Veteran contended his tinnitus was related to B-52 noise and that he began to experience such two to three years prior to examination; (b) the Veteran’s January 2009 NOD, upon which he reported that he first experienced tinnitus while on active duty, such continued intermittently, and built to a constant ringing over the years, and that he did not wear hearing protection in service; (c) the April 2010 VA examination report which states that the Veteran reported that he was unsure when his tinnitus began, but possibly in 1984; and (d) the October 2018 VA medical opinion. The examiner should specifically comment on the Veteran’s January 2009 statement that he first experienced tinnitus while on active duty, such continued intermittently, and built to a constant ringing over the years, and that he did not wear hearing protection in service. The examiner is informed that the Federal Circuit has held that a medical opinion which relies on the absence of contemporaneous medical evidence, and fails to consider whether lay statements present sufficient support of the etiology of the claimed disability, is inadequate. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel