Citation Nr: 19155255 Decision Date: 07/18/19 Archive Date: 07/17/19 DOCKET NO. 14-28 744 DATE: July 18, 2019 ORDER Service connection for chronic obstructive pulmonary disease (COPD), on the basis of aggravation but not on a direct basis, is granted. Service connection for sarcoidosis is granted. REMANDED The claim for a compensable disability rating for pruritis of the crural area is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s COPD began during active service, or is otherwise related to an in-service injury or disease; rather COPD is the result of the Veteran’s own tobacco use. 2. The evidence of record suggests that the Veteran’s COPD was aggravated by his sarcoidosis. 3. The Veteran’s sarcoidosis began during his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD have been met on the basis of aggravation, but not otherwise. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for sarcoidosis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1967 to May 1971. He testified at an April 2018 hearing before the undersigned Veteran’s law judge. Sarcoidosis The Veteran initially filed a claim for a skin rash in 2010, which was granted, and a rating was assigned predominantly for a rash in his groin area. The Veteran appealed the assigned rating. However, while service connection was granted pruritis of the crural area, it has become apparent that the Veteran also has sarcoidosis, which as was explained in a 2019 VHA opinion is a wholly separate skin condition. The Board is sympathetic to the Veteran’s lack of awareness that he had two separate skin diseases at play and that sarcoidosis was developed later. Nevertheless, as is discussed below, the Board cannot ignore the multiple positive medical opinions in this case regarding the Veteran’s sarcoidosis. Accordingly, the Board finds that a claim for sarcoidosis was raised as part of the Veteran’s claim that is currently on appeal. The Board will now turn to the evidence of record to address whether it either began during or was otherwise caused by the Veteran’s military service. In October 2018, the Board sought an expert medical opinion from a pulmonologist. It was noted that the Veteran’s Service Treatment Records (STRs) showed that in 1972, he sought service connection for a skin condition that was impacting his legs and groin. Treatment records show pruritis in crural areas between 1971-1973 and a VA examination in October 1973 addressed the skin condition. Service connection was granted for this condition. In October 2008, the Veteran indicated that he was still being treated for the skin rash which had neither improved nor worsened since service. In August 2010, a private treatment record noted that the Veteran had a history of sarcoidosis of the skin since approximately 2002. In November 2012, Dr. Lim acknowledged that the Veteran was not diagnosed with sarcoidosis until 2002, but that because cutaneous lesions of sarcoidosis are asymptomatic, it was at least as likely as not that the Veteran’s sarcoidosis started while he was in the service. In June 2018, Dr. Bowles indicated that he concurred with Dr. Lim, but neither doctor provided any rationale for the claim that the Veteran’s sarcoidosis either began during or was otherwise caused by his military service. As such, the Board asked a VA pulmonologist whether it was at least as likely as not (50 percent or greater) that the Veteran’s sarcoidosis either began during or was otherwise caused by his military service. The medical professional responded that it was, explaining that throughout the Veteran’s medical record the dermatologists have separated the groin rash as a separate process from the sarcoidosis rash. This distinction makes medical sense because the sarcoidosis rash which is biopsy proven has been described as affecting the Veteran’s face and back. A review of the Veteran’s military chart reveals a visit for a rash on the back, arms, and legs in January 1969, another with a facial rash in March 1969, and finally a rash on the chest in April 1971. The most descriptive physical examination was from the March 1969 visit which described circular discrete dry plaques on the right side of the neck. The medical professional reasoned that this rash could be consistent with the Veteran’s now diagnosed sarcoidosis. However, he suggested that at the time it might have been misattributed to being caused by contact dermatitis since the patient had documented rashes in the military which could be consistent with sarcoidosis and in locations where he is currently affected by sarcoidosis. The medical professional agreed with the two private medical opinions. As such, the evidence of record clearly makes it at least as likely as not (50 percent or greater) that the Veteran’s sarcoidosis either began during or was otherwise caused by his military service and therefore service connection for sarcoidosis is granted. COPD The Veteran asserts that his COPD is due to his active service. He testified that he worked in customs and inspected soldiers returning from Vietnam, and as such, was exposed to herbicide agents secondhand. He also asserted that his COPD is due to exposure to exhaust fumes. Finally, he asserted that his COPD is due to his sarcoidosis. In his August 2014 substantive appeal, the Veteran argued that he got COPD from his job in the military and the exposure to diesel fumes. He reported working security to guard the flight line and explained that to keep warm they used diesel heaters to heat the guard shack. He also reported being exposed to jet fuel. He recalled feeling dizzy and sleepy at times from the fumes in the guard shack and would go stand outside in such occasions. In September 2011, the Veteran reported being stationed at a Korean base in Suwon Korea in the spring of 1968 for 90 days. He recalled guarding barrels containing chemicals. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131. Service connection can also be established on a secondary basis for a disability that is proximately due to, or the result of, a service connected disease or injury. 38 C.F.R. § 3.310(a). Of note, VA regulations note a distinction between a service connection award on a secondary basis, from an award on the basis of aggravation, because when a disability is found to be entitled to VA disability compensation based on § 3.310(b), the rater is directed to deduct the baseline level of severity from the assigned disability rating. In other words, VA compensates a disability based on aggravation of a nonservice-connected disability by a service-connected disability only to the degree to which the service-connected disability aggravates the nonservice connected disability. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection on a direct basis, but does find that his COPD was aggravated by his service connected sarcoidosis. Significantly, COPD is not among the diseases listed at 38 C.F.R. § 3.309(e) for which service connection is warranted on a presumptive basis due to in-service herbicide exposure. See also 38 U.S.C. § 1116 and 68 Fed. Reg. 27630-41 (May 20, 2003) (stating that the Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted). As such, the Board does not find any evidence to support presumptive service connection based on herbicide exposure. While treatment records indicate that the Veteran has a current diagnosis of COPD, service treatment records and personnel records do not document complaints, treatment, or diagnosis related to COPD. The Veteran’s service treatment records show he had normal examinations of his lungs at both his March 1967 entrance examination and his March 1971 separation examination. Notably, the Veteran’s medical examination at separation shows a normal clinical evaluation for the lungs and chest. There was no notation for COPD, lung, breathing, or respiratory problems. Thus, at separation, the Veteran’s was not diagnosed with COPD, therefore it was not incurred in service. The Board acknowledges the Veteran’s contentions that his COPD was caused by exposure from various toxins to include fumes and herbicide agents during active service. The Board finds that the record does not include probative and competent evidence establishing a nexus between COPD and the Veteran’s military service. Lay evidence may be competent to establish medical etiology or nexus. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, a diagnosis of a pulmonary disorder requires specialized training for determinations as to diagnosis and causation, and is therefore, not susceptible to lay opinions on etiology. Therefore, the Board finds that the lay assertions proffered by the Veteran lack probative value. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence of record. There are numerous post-service medical records reflecting complaints and treatment for COPD. However, these records do not provide a positive nexus regarding the onset, etiology, or relationship of the Veteran’s current COPD to his military service, to include any exposures therein. VA treatment records from September 2008 noted that the Veteran was diagnosed with COPD in approximately 1998. Chest x-rays in September 2008 were noted to show hyperinflation of the lungs which the medical professional suggested COPD consistent with a given history of smoking. In August 2010, a private treatment record noted that the Veteran’s predominant abnormality is obstructive lung disease due to smoking. An April 2018 medical record reflects that the Veteran has a tobacco history of 1 pack per day for 30 years. Thus, there is indication of an association between his COPD and smoking history, which is evidence against service connection for COPD. 38 U.S.C. § 1103; 38 C.F.R. § 3.300 (stating that service connection is expressly precluded for any disability related to chronic tobacco use for claims received after June 9, 1998). As such, even if the Veteran began smoking in service, this would be insufficient to support a grant of service connection for a smoking related disability that was diagnosed years after service. Thus, even though the pulmonologist found that exposure to tobacco products in the military was at least as likely as not the cause of the Veteran’s COPD, it was not actually documented that COPD was present during service. Further, the physician noted that the Veteran’s exposure to fumes during military service were not significant enough to cause his COPD. The physician noted that COPD is generally characterized by airflow limitation which is essentially caused by either inflammation in the airways or from destruction of surrounding lung tissue, generally as a reaction to smoke exposure. The physician also noted that medical literature does not support a causal relationship between COPD and exposure to fumes. The physician’s opinion establishes a link between the Veteran’s smoking history and current disability. The opinion is grounded in the Veteran’s medical history, lay assertions, and the physician’s medical knowledge. Further, the opinion provides explanations that contain clear conclusions and supporting data. Therefore, the Board finds that the opinion proffered in the VHA medical opinion are highly probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Absent competent, credible, and probative evidence of a nexus between the Veteran’s service and his COPD, the Board finds that COPD was not incurred in service and it is not otherwise related to service. Accordingly, service connection for COPD on a direct basis is denied. The Board will now consider secondary service connection for COPD. To this end the Board sought a VHA medical opinion in late 2018 to clarify the etiology of the Veteran’s COPD and any relationship to sarcoidosis. The April 2019 VHA medical opinion found that it was less likely than not that the Veteran’s sarcoidosis caused his COPD, explaining that COPD is generally considered to be characterized by persistent respiratory symptoms and airflow limitation that is due to airway and/or alveolar abnormalities usually caused by significant exposure to noxious particles or gases. Essentially the airflow limitation (obstructive) is caused either by Inflammation In the airways or from destruction of surrounding lung tissue generally as a reaction to smoke exposure. Asthma can also contribute to COPD sarcoidosis is not a known cause of COPD as commonly defined. However, when asked if the Veteran’s sarcoidosis aggravated (made worse) his COPD, the medical professional indicated that it had. He noted that the Veteran’s medical record clearly showed that the Veteran had pulmonary involvement from his sarcoidosis as his September 2018 CT scan showed prominent mediastinal and hilar adenopathy, which were classic findings in sarcoidosis. The medical professional explained that involvement of the lymph nodes in the lung without visual abnormalities in the rest of the lung tissue was referred to as radiographic stage 1 sarcoidosis, and he noted that sarcoidosis alone can cause airway obstruction even in stage 1 sarcoidosis, and can involve the airways without that process being apparent on X-ray or CT scan because the granulomas are microscopic in size. This would make his obstruction worse and could make his COPD symptoms worse. Therefore, the medical professional concluded that it was at least as likely as not (50 percent or greater) that the Veteran’s sarcoidosis aggravated his underlying COPD. Given this opinion, the Board finds that the criteria for service connection for COPD have been met on the basis of aggravation. However, it remains unclear what level of rating can be assigned, as the medical professional did not specifically identify the level of aggravation, and VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. However, this determination is considered to be a rating issue. REASONS FOR REMAND The Board notes that the Veteran experiences two separate skin conditions pruritis and dermal sarcoidosis. He is currently service connected for both. The Veteran asserts that his service-connected skin condition has worsened, and a compensable disability rating is warranted. Specifically, in his substantive appeal, the Veteran asserts that he is prescribed an immunosuppressive drug to treat his service-connected skin condition and it is this drug that prevents the condition from spreading to more than five percent of his body. The Veteran also asserts that his skin condition flares up so badly that he is unable to walk or leave his home. The Veteran’s last VA examination addressing his service-connected pruritis was in December 2010. The current medical evidence is insufficient for the Board to determine the current nature and severity of the Veteran’s service-connected skin conditions. The matters are REMANDED for the following action: Schedule the Veteran for an examination to determine the current severity of his service-connected pruritis and sarcoidosis. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. I. Sims, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.