Citation Nr: 21001420 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 13-35 699 DATE: January 8, 2021 ORDER Service connection for chronic obstructive pulmonary disease (COPD) is denied. FINDING OF FACT 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, to include service-connected pulmonary aspergilloma, residuals of pulmonary tuberculosis (resolved) with scarring of the lungs. CONCLUSION OF LAW The criteria for establishing service connection for COPD are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.3.10. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army from September 1973 to June 1977, and from June 1977 to October 1978. In April 2017, the Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing. A transcript is of record. The Board of Veterans’ Appeals (Board) remanded this claim to the Regional Office (RO) in September 2017 and again in February 2019 for further development. Specifically, in September 2017, the Board remanded the issue of entitlement to service connection for residuals of pulmonary tuberculosis, to include COPD and scarring of the lungs. As a result of the additional development completed, in a December 2018 rating decision, the Veteran was granted service connection for pulmonary aspergilloma, residuals of pulmonary tuberculosis (resolved), rated 100 percent, effective October 7, 2011 (date of claim). As this decision did not address the Veteran’s COPD and scarring of the lungs, the claim was remanded again in February 2019. In October 2020, the Veteran was issued a rating decision that granted service connection for scarring of the lungs and evaluated it along with the 100 percent disability rating assigned for service-connected pulmonary aspergilloma, residuals of pulmonary tuberculosis (resolved). Accordingly, the issue presently on the appeal has been recharacterized to reflect the sole remaining issue of entitlement to service connection for COPD. Service Connection 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. § 1110; 38 C.F.R. § 3.303(a). To establish service connection, 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. Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2010); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Another theory of entitlement to service connection is secondary service connection. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. The phrase “due to or the result of” encompasses disability caused by or aggravated by the service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439 (1995). VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless there is medical evidence showing the baseline level of severity of the nonservice-connected disease or injury before such was worsened beyond its natural progress by the service-connected disease or injury. 38 C.F.R. § 3.310(b). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Board must determine, on a case by case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999). The United States Court of Appeals for Veterans Claims has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to service connection for COPD The Veteran is seeking service connection for pulmonary and respiratory issues that he believes are residuals from the pulmonary tuberculosis he experienced in service. As previously discussed, the Veteran is presently service-connected for pulmonary aspergilloma, residuals of pulmonary tuberculosis (resolved) with scarring of the lungs. Therefore, the only issue that remains is the nature and etiology of his COPD. Specifically, the question for the Board is whether the Veteran has a current diagnosis of COPD that began during service, is at least as likely as not related to an in-service injury, event or disease or was caused or aggravated by his service-connected pulmonary tuberculosis. The Board concludes that, while the Veteran has been diagnosed with COPD, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event or disease, including his service-connected pulmonary aspergilloma, residuals of pulmonary tuberculosis (resolved) with scarring of the lungs. See December 2017 VA examination and See October 2019 Disability Benefits Questionnaire. At the outset, a review of the Veteran’s service treatment records confirm that he was treated for pulmonary tuberculosis in service; however, they are otherwise silent for any signs, symptoms or diagnosis of COPD. A February 2012 VA examiner confirmed the Veteran was diagnosed with active pulmonary tuberculosis and received treatment while on active duty. However, the examiner found there was no objective evidence to support that the Veteran had a chronic lung condition related to tuberculosis. Based on the Veteran’s statements, he used to smoke cigarettes in the amount of one and a half packs a day for twenty-five years and quit smoking in 2011 after he was hospitalized for pneumonia. There was no evidence of active tuberculosis at the time of the examination. Therefore, the examiner concluded that there was no objective evidence that the Veteran’s resolved pulmonary tuberculosis caused or aggravated his COPD. See February 2012 VA examination. At the April 2017 Board hearing, the Veteran testified he had an 8-centimeter hold in his right lung with scar tissue, which caused him to get double pneumonia in approximately 2011. He also testified that he continued to take medication for the lungs and contended that his respiratory issues were related to his military service, and specifically his tuberculosis. See Hearing Transcript. To support his claim, the Veteran submitted a portion of a VA consultation report dated September 2016 where his treating pulmonologist noted that the Veteran had findings consistent with “some form of noninvasive aspergillus infection” and “at the least, a fungus ball”. His treating pulmonologist also stated that the Veteran’s CT scan showed “some associated pleural reaction, scarring versus infiltrate and bronchiectasis,” and indicated these findings “could be the residua of his previous [tuberculosis] or could be an indication of early chronic cavitary aspergillosis or even bronchopulmonary aspergillosis.” See Medical Records. Following the Veteran’s hearing testimony before the Board and as discussed in the February 2019 Board remand, another VA examination was performed in December 2017 but there were questions as to whether the VA examiner’s opinion was formed based on a review of the entire claims file. See December 2017 VA examination. Therefore, another VA examination with addendum opinion was requested. In satisfaction of the Board’s remand, a more recent VA respiratory Disability Benefits Questionnaire (DBQ) was again performed in October 2019. The examiner reiterated the Veteran’s contention that he was diagnosed with COPD in 2003. He continued to have issues with difficulty breathing and shortness of breath. He was also diagnosed with Aspergillosis and cavitation of the lungs, which was a complication of service-connected tuberculosis. In the past 18 months, the Veteran had been treated with oxygen therapy twice for a short period of time and was prescribed medication for his lungs daily. After reviewing the foregoing, in an October 2019 medical opinion, the examiner found that the Veteran’s COPD was less likely than not caused by his military service. The examiner highlighted the fact that COPD was actually diagnosed after the Veteran’s separation from military service on September 29, 2011, following a hospitalization. The examiner also supported the opinion by noting that, according to medical literature, COPD did not cause scarring on the lungs. It damaged the airway space by enlarging the air sacs, causing inflammation and mucus production of the bronchial airway. The examiner stated that there was not a link between tuberculosis and COPD and noted that in the United States, COPD was typically caused by smoking. The examiner concluded the Veteran’s COPD was not service connected to the military service. See October 2019 Medical Opinion. In a medical addendum opinion to the October 2019 examination, obtained in October 2020, the VA examiner clarified his secondary service connection opinion, stating it was less likely than not that the Veteran’s diagnosis of COPD was aggravated beyond the natural progression by the pulmonary aspergilloma, residuals of pulmonary tuberculosis (resolved). In support of that opinion, the examiner indicated there was no credible medical evidence that the residuals of tuberculosis or aspergilloma would result in aggravation or worsening of COPD. See October 2019 Medical Addendum Opinion. Lastly, as noted in the February 2020 addendum opinion, while the Veteran reported a diagnosis of COPD in 2003, the earliest documentation of COPD in the Veteran’s record is 2011. See February 2020 VA Addendum Opinion. Based on the foregoing medical evidence, it is not shown that the Veteran’s COPD had its onset in service or is otherwise related to his military service; it is also not shown that the Veteran’s COPD was caused or aggravated by his service-connected pulmonary aspergilloma, residuals of pulmonary tuberculosis (resolved) with scarring of the lungs. Significantly, the Veteran’s service treatment records do not show treatment for COPD during service, and instead, his records indicated that he was diagnosed with COPD in 2011, which is post-service. Moreover, the VA examiners who have offered medical opinions in this case have provided clear rationale for their finding that there is not a link between tuberculosis and COPD and that, in the United States, COPD is typically caused by smoking. The record reflects the Veteran used to smoke cigarettes in the amount of one and a half packs a day for twenty-five years and quit smoking in 2011 after he was hospitalized for pneumonia. The Board recognizes the Veteran was treated for pulmonary tuberculosis during service. As a result of this in-service illness, he has been awarded service connection for pulmonary aspergilloma, residuals of pulmonary tuberculosis (resolved) with scarring of the lungs, and assigned a 100 percent rating for that disability. Although the Veteran believes his in-service pulmonary tuberculosis also caused or aggravated his COPD, he is not competent as a lay person to opine as to whether his current COPD is related to his in-service pulmonary tuberculosis or to the residuals he currently experiences as a result of that in-service illness (i.e., his service-connected pulmonary aspergilloma, residuals of pulmonary tuberculosis (resolved) with scarring of the lungs). The questions involved in this case are medically complex and require specialized knowledge and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. (Continued on the next page)   In this regard, the VA examiners’ negative nexus opinions warrant probative weight because the examiners reviewed the Veteran’s pertinent treatment records and considered his lay statements regarding onset and symptomatology of his COPD. They also considered the Veteran’s in-service diagnosis of pulmonary tuberculosis and whether the Veteran’s COPD was caused or aggravated by his pulmonary aspergilloma, residuals of pulmonary tuberculosis (resolved) with scarring of the lungs. The examiners further provided thorough explanations for the rationales provided. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008). There is no competent evidence to the contrary. In summary, the preponderance of the evidence is against the claim for service connection for residuals of pulmonary tuberculosis, to include COPD. Because the preponderance of the evidence is against the Veteran’s appeal, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Churchwell, 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.