Citation Nr: 20062829 Decision Date: 09/24/20 Archive Date: 09/24/20 DOCKET NO. 15-08 814A DATE: September 24, 2020 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. FINDING OF FACT The Veteran’s COPD was not incurred in service or otherwise caused by such service. CONCLUSION OF LAW The criteria for entitlement to service connection for COPD have not all been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from December 1965 to December 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for COPD. The Veteran testified at a Board hearing before the undersigned in February 2019; a transcript of that hearing is associated with the claims file. Entitlement to service connection for COPD is denied. 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(a). “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). The Veteran contends that he is entitled to service connection for his respiratory disability. Specifically, he asserts that as a result of his military occupation as a firefighter, he was exposed to hazardous smoke and other chemicals. See January 2015 notice of disagreement (NOD). He stated that while he was stationed in Fairbanks, Alaska, he had to put out fires in the coal silos. Id. He further stated that the unknown fumes emitted from the coal and the constant exposure to fumes of aircraft fuels deteriorated his respiratory system. Id. Turning to the evidence of record, a review of the service treatment records reveal that the Veteran received treatment for chest cold, cough, chest pain, and an upper respiratory infection in January 1966. He received treatment for mild sore throat and slight cough in March 1967. He also received treatment in February 1968 for a cold, sore throat, pharyngitis, and an upper respiratory infection. The February 1969 service treatment records reflects that the Veteran complained of sore throat and non-productive cough for a couple of weeks. The Veteran underwent a smoker examination. The examiner noted that the Veteran’s throat was benign, and his neck was supple. The examiner listed the impression as post upper respiratory infection. In November 1969, the Veteran marked no for shortness of breath, chest pain, and cough on the Report of Medical History. The March 2003 VA treatment records show that the Veteran presented to the emergency room with a 2-day history of increasing shortness of breath. The treatment record also states that the Veteran has had upper respiratory infection symptoms with congestion, productive cough of yellow/white sputum during this period as well. The clinician further noted that the Veteran is requiring albuterol several times a day and is continuing to have shortness of breath. These treatment records also show that the Veteran underwent x-ray imaging of his chest in October 2002. This study shows that the Veteran’s cardiac silhouette was unremarkable. The pulmonary vasculature was not congested. The lungs were well aerated and clear. The examiner noted that this was unchanged from the study of September 2001. The April 2003 Miami VA Medical Center treatment record states that the Veteran has severe airflow limitation, markedly improved with combination inhaled bronchodilators (albuterol and ipratropium) on this study. The clinician also noted that the Veteran lung volumes were suggestive of overinflation. The interpretation also states “[s]everely reduced transfer factor for carbon monoxide. Arterial blood gases at rest on room air reveal normal oxygen tension. Mild metabolic alkalosis. Elevated carboxyhemoglobin (carbon monoxide exposure).” The medical history of the May 2003 VA Compensation and Pension Exam Report states that the Veteran has smoked two packs of cigarettes a day for at least 40 years or more. The examiner also noted that the Veteran reported that he still smoked three to four cigarettes daily. This report also shows that the Veteran has obstructive pulmonary disease at least partly related to excessive smoking over the years. The June 2014 Respiratory Conditions Disability Benefits Questionnaire (DBQ) also shows that the Veteran has COPD. In the January 2015 NOD, the Veteran stated that he has been receiving treatment for his respiratory condition since his release from active duty. A review of the VA treatment records demonstrates that the Veteran received treatment for COPD. In the nexus letter from the Veteran’s private physician received in February 2019, the physician noted that the Veteran was referred to him in 2018 regarding his symptoms of shortness of breath. The physician noted that he evaluated the Veteran and diagnosed him with emphysema. The letter states that he based his diagnosis on a CT of the chest in February 2018 that showed that he had hyperinflation of the lungs and flattening of the diaphragms. His spirometry testing showed an FEV1 of 0.62 liters that was 26 percent of predicted. The physician opined that the cause of his illness is due to cigarette smoking from 1965 to 2008 and at least as likely as not to his occupation as a firefighter when he was in the military where he was exposed to smoke, gasoline, jet fuel, and other chemicals that he inhaled when performing his duties. The journal on respiratory mortality among firefighters demonstrates that firefighters are probably at increased risk for dying from non-malignant respiratory diseases. The journal further states that this increased risk may have been missed in previous studies due to the limitations of using a general reference population. The article on analysis of the impact of harmful factors in the workplace on functioning of the respiratory system of firefighters concludes that there is a correlation between occupational exposure and respiratory system involvement in firefighters. The Veteran was afforded a VA examination in November 2019. This examination shows that the Veteran was diagnosed with COPD in 2003. The examiner noted that the Veteran’s claims file showed that the Veteran was diagnosed with COPD in 2003 which was 34 years after his military service. The examiner further noted that it was documented in his claims file in the May 2003 VAMC treatment record that bronchospasm and obstructive pulmonary disease is at least partly related to excessive smoking over the year. The examiner also noted that the Veteran has continued to receive treatment for his COPD from the VA. In the November 2019 VA medical opinion DBQ, the examiner noted that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that after review of the Veteran’s available medical records in his claims file, there was no objective evidence, no complaints, treatment, nor diagnosis for the claimed COPD during service. He further stated that the Veteran was diagnosed with COPD in 2003 which was 34 years after his military service and cannot be linked to service. He concluded that therefore, the claimed COPD was less likely than not incurred in or caused by or during service. During the Board hearing, the Veteran testified that he began smoking in 1966 and that he stopped in about 2003. The Veteran further testified that when he smoked, he smoked about a pack of cigarettes a day. He stated that he was diagnosed with COPD in 2003. The Veteran testified that he was having problems breathing while in the military. He also testified that while in the military during training, they would burn 55-gallon drums of fuel in order to put the fires out. He stated that during this, he was exposed to a lot of smoke. The Veteran also testified that he had to put out coal dust fires and coal fires. He stated that while putting out the fires, he was breathing in the coal dust and the smoke. He further stated that when he would finish, often times, he would be so short of breath, he would need help off the beam onto the ladder and down to the floor because he would be so tired from breathing in the smoke. The Veteran was afforded another VA examination in July 2020. The examiner stated that the claims file was reviewed with attention to an opinion, submitted by the Veteran and received by the VA in February 2019, from his private physician diagnosing the Veteran with emphysema. This VA examiner referenced the opinion by the private physician as previously discussed above. The examiner stated that the private physician in his opinion does acknowledge that the cause of his illness is due to cigarette smoking from 1965 to 2008 and added that it is at least as likely as not caused by his occupation as a firefighter when he was in the service, where he was exposed to smoke, gasoline, jet fuel, and other chemicals that he inhaled when performing his duties. The examiner further stated that she agrees with the first statement that the Veteran’s COPD and emphysema is due to his heavy smoking for over 40 years. She stated that she does not agree that it is also due to his job exposure in active duty to smoke, gasoline, jet fuel, and other chemicals that he inhaled when performing his duties. The examiner provided a rationale. She noted that the Veteran has a history of heavy smoking for over 40 years. She also noted that the Veteran only quit in 2010 when his pulmonary function was so severe, at stage III COPD. The examiner stated that the Veteran was admitted in September 2011 due to exacerbation of his COPD and right upper lobe pneumonia. She noted that he was discharged on home oxygen. The examiner acknowledged that the literature submitted by the Veteran was reviewed. She noted that although firefighters have been shown in some studies to suffer chronic respiratory morbidity from their occupational exposures, it is noted that these would be for prolonged and frequent exposures for many years. She stated that in relation to the Veteran’s claim, he served for 4 years in active service and although service records do reflect his military occupational specialty as a firefighter, his claimed exposure was for the duration of only 4 years as compared to over 40 years of heavy smoking, which is his most important risk factor for developing COPD and emphysema. The examiner noted that the Veteran was a smoker while in service and remained a smoker long after discharge from active duty. She stated that the VA records show the Veteran was a smoker until 2010 when he was diagnosed with severe COPD by Miami VA Pulmonologist after a PFT and consult. The examiner also referenced UpToDate. She noted that numerous epidemiologic studies indicate that tobacco smoking is overwhelmingly the most important risk factor for COPD. She also noted that the amount and duration of smoking contribute to disease severity. She further noted that the chronologically taken environmental/occupational history may disclose other important risk factors for COPD, such as exposure to fumes or organic or inorganic dusts. She stated that these exposures help to explain the 20 percent of patients with COPD (defined by lung function alone) and the 20 percent of patients who die from COPD who never smoked. The examiner opined that in relationship to the Veteran’s claim, the Veteran has a history of over 40 years of smoking and thus, although environmental and occupational exposures to particulate matter, dusts, vapors, fumes, or organic antigens may also be a risk factor for COPD, given that the Veteran served for only 4 years it is less likely the cause of his COPD and emphysema. The examiner concluded that therefore, the Veteran diagnosis of COPD is less likely incurred in or caused by the military occupation of a firefighter with exposure to smoke, gasoline, jet fuel, and other chemicals during service. Turning to the merits of this case, the Board finds that the Veteran has a current COPD and emphysema diagnosis as shown above. The in-service element is also met in this case. However, the Board finds that the nexus element is not met in this case as the Veteran’s current respiratory disabilities are not related to his active military service. The July 2020 VA examination is the most probative evidence of record with respect to the nexus element. The VA opinion is adequate and is supported by compelling rationale. The examiner noted that she has reviewed the Veteran’s claims file. Additionally, the VA examiner provided a compelling rationale as to why she disagrees with the Veteran’s February 2019 positive nexus opinion from his private physician that the cause of his illness is at least as likely as not due to his occupation as a firefighter when he was in the military where he was exposed to smoke, gasoline, jet fuel, and other chemicals that he inhaled when performing his duties. The February 2019 private opinion is afforded very little probative weight. The opinion is not supported by adequate rationale. In this opinion, the physician simply noted the Veteran’s examination results and concluded that the Veteran’s disabilities are related to his military service. The Veteran’s opinions have been considered but they are not probative. Although the Veteran is competent to observe his breathing problems, the Veteran does not have the requisite medical training to determine that his breathing problems were caused by his military service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board acknowledges the literature submitted by the Veteran indicating that there is a correlation between occupational exposure and respiratory system involvement in firefighters. However, the literature is general and is not specific to the same facts as presented by the Veteran in this case. This was explained in the July 2020 VA medical opinion. In conclusion, the July 2020 VA examination is found to be the most probative evidence in this case as the VA examiner has reviewed the case file and has provided a thorough rationale as to the lack of a nexus. The Board has considered all of the evidence of record, including the Veteran’s own opinion but finds the July 2020 opinion the most probative due to the extensive logical explanation and accounting for all evidence of record. For the foregoing reasons, the Board must find that service connection cannot be awarded on that basis. In summation, the preponderance of evidence is against a finding that the Veteran’s current COPD and emphysema were incurred in or otherwise the direct result of military service. Service connection for COPD and emphysema must therefore be denied; there is no reasonable doubt to be resolved in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Williams, Rochelle 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.