Citation Nr: 21001637 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 15-06 252A DATE: January 11, 2021 ORDER Entitlement to service connection for COPD (claimed as pulmonary function disease), as due to environmental hazards is denied. FINDING OF FACT The Veteran's COPD did not have its onset during active service, nor is it otherwise related to service, to include exposure to environmental hazards during his service in Kuwait/Iraq. CONCLUSION OF LAW The criteria for entitlement to service connection for chronic obstructive pulmonary disease (COPD) (claimed as pulmonary function disease), as due to environmental hazards, have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army National Guard, with active duty service from June 2004 to November 2005, including service in Kuwait/Iraq. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran provided testimony before the undersigned Veterans Law Judge at a July 2018 videoconference hearing. A copy of the hearing transcript has been associated with the Veteran’s electronic claims file. In January 2019, the Board remanded this matter to the RO for further development of records that might corroborate the Veteran’s claim. Specifically, the RO obtained an addendum medical opinion that fully considered the Veteran’s lay statements regarding his hazardous exposures during active service. The Board also requested that the RO undertake appropriate efforts to obtain the Veteran’s private treatment records from Dr. BDS. The RO complied with the instructions, and service connection was denied in a supplemental statement of the case (SSOC) dated in July 2020. The Board finds there has been substantial compliance with the January 2019 remand instructions, and the claim is ready for disposition on the merits. 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 favorable to the claimant, when rendering a decision on appeal. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board's decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104(d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81(Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149(2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Generally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67(Fed. Cir. 2004). Regulations provide that compensation may be paid to any Persian Gulf War veteran “suffering from a chronic disability resulting from an undiagnosed illness (or combination of undiagnosed illnesses).” 38 U.S.C. § 1117. These may include, but are not limited to, muscle pain, joint pain, neurologic signs or symptoms, and symptoms involving the respiratory system. See 38 C.F.R. § 3.317(b). The chronic disability must have manifested either during active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent or more, and must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. Objective indications of a chronic disability include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Id. A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome (CFS); (2) fibromyalgia; (3) irritable bowel syndrome (IBS); or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service-connection. 38 C.F.R. § 3.317(a)(2)(i). To date, VA has not identified any other medically unexplained chronic multi-symptom illnesses for purposes of 38 C.F.R. § 3.317. The Veteran contends his current chronic obstructive pulmonary disease (COPD) was incurred during his military service. Specifically, he asserts that his deployment to the Gulf between 2004 and 2005 exposed him to large amounts of hazardous particulate matter from a local brick factory in Iraq. See December 2012 Statement in Support of Claim. Additionally, the Veteran’s representative contends that his exposure to toxic fumes, dust, and soot from burning fire pits should be considered as the cause for his current respiratory disorder. See November 2020 Informal Hearing Presentation. The Veteran's service treatment records indicate in October 2004 he complained of congestion and was diagnosed with sinusitis. However, his records were silent for any complaints, diagnoses, or treatment for a pulmonary condition or lung-related complaints. In a March 2005 post-deployment health assessment, he indicated his health had stayed the same or got better during deployment, and although he complained of runny nose, among other things, he denied chest pain or difficulty breathing. In June 2006, when he enrolled for VA health care, he denied shortness of breath, cough, or chest pain, and his lungs were normal on examination. He continued to deny cough, shortness of breath or wheezing during VA health evaluations in 2007, 2008, 2009, 2010 and 2011. After complaints of shortness of breath in October 2012, the VA records show a diagnosis of mild obstructive disease. See December 7, 2012 VA treatment records. A February 2013 VA Gulf War medical examiner opined that the Veteran likely had a mild obstructive defect indicative of early COPD, a disease with a clear and specific etiology. The examiner opined this diagnosis is not related to a specific exposure event experienced by the Veteran during his service in Southwest Asia, but most likely due to his history of cigarette smoking, which was the most important risk factor for the development of COPD. However, the VA examiner noted that the Veteran reported smoking one pack of cigarettes per day for 8 years and quit smoking in his early 20s, while he testified that he smoked less than one pack of cigarettes per day from ages 17 to 19. While the VA examiner noted the Veteran’s lay contention of in-service environmental toxin exposure from the brick factory, the rationale supporting the negative nexus opinion did not discuss the impact, if any, of this hazard on the development of the Veteran’s current pulmonary disability. Consequently, the Board finds this medical nexus opinion has no probative value against the claim. At his July 2018 Board hearing, the Veteran stated that he was exposed to dust in the air and soot from a brick factory. He also thought some of that may have been debris from the trash fires outside the Forward Operating Base (FOB) Caldwell in Iraq, although he never went to the burn pits. The Veteran also noted that although he used to smoke about a pack of cigarettes a day, that was when he was in his teens and he quit by the time he was 19 years old. In July 2018, the Veteran’s private physician, Dr. BDS, provided a positive medical nexus opinion diagnosing the Veteran with COPD stating it “likely was caused by his multiple environmental exposures while deployed in Iraq” and adding the Veteran “was subjected to continuous operational conditions and exposure to: human waste, indigenous plants and animals, composite material fires, petrochemical waste and fumes, gases, fumes and dust of unknown origins, and sand, dust and particulates.” Unfortunately, this positive nexus opinion was not only conclusory without any supporting rationale, but it was also based on an inaccurate factual basis. Mainly, the private physician’s underlying medical records show he was given a smoking history of less than one to two packs of cigarettes a year at age 18. However, during the Veteran’s hearing, he testified he smoked around a pack of cigarettes a day from ages 17 to 19. As such, this opinion has no probative weight for adjudicative purposes. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis); Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”). Additionally, in July 2018, a VA physician, Dr. RGR, also provided a positive medical nexus opinion diagnosing the Veteran with COPD “caused by his exposure to toxic fumes in Iraq during the Persian Gulf War.” Unfortunately, this positive medical nexus opinion is also conclusory without supporting rationale, and contains no discussion whatsoever of the Veteran’s smoking history. This opinion is also entitled to no probative weight for adjudicative purposes. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion “must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that a medical opinion that contains only data and conclusions without any supporting analysis is accorded no weight). The record also includes public health articles published by the VA discussing general medical terms and principles and possible associations between sand and dust particles exposure; burn pit exposure; and other Iraq exposures and health concerns. These materials do not indicate that this particular Veteran’s in-service exposures (actual and potential) could be associated with his pulmonary condition, as the materials are too abstract and simply discuss generic relationships and provide information rather than provide any form of certainty or particularity to warrant probative weight. Sacks v. West, 11 Vet. App. 314, 317 (1998). Pursuant to the January 2019 remand, in November 2019, the Veteran underwent another VA examination. The Board will not address the parts of the opinion discussing asbestos, since such was not specifically claimed, although the examiner did not no evidence of asbestosis. After a thorough review of the private medical records, the VA examiner opined that the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner reasoned that there is no medical and scientific evidence linking his COPD condition to his military service. Instead, the examiner opined that the Veteran’s COPD is more likely than not related to his smoking history. Regarding the Veteran’s brick factory contention, the examiner noted that significant exposure at a brick factory may cause silicosis (although very remote since bricks are made mostly of clay). It would take a significant exposure to cause silicosis, a diagnosis the Veteran does not have. As such, the examiner notes that any positive nexus opinions provided were done in error, based on mere speculation, and without scientific evidence. Further, the examiner states that although the Veteran may have been exposed to toxic environmental elements as Dr. DBS and Dr. RGR opined, so have many other hundreds of thousands of service members, many with multiple deployments, without any issues. He noted there is just no scientific or medical evidence to support the Veteran’s claim that a single deployment to Iraq is the cause of his COPD. In addressing the contention of considering the exposure to burning fire pits, the Board notes that the Veteran’s assigned Military Occupation Specialty (MOS) was that of a Food Specialist. See DD-214 Certificate of Release or Discharge from Active Duty. As such, his duties were not such that would ordinarily involve exposure to burn pits, and he testified that “he never visited the burn pits” outside of the FOB. See July 2018 Hearing Transcript. Lastly, the public health article submitted by the Veteran regarding the effects of burn pits exposure on Veterans indicates that medical research does not show evidence of long-term health problems from exposure to burn pits, which further supports the November 2019 VA examiner’s opinion that although the Veteran may have been exposed to toxic environmental elements (to include burn pits), there is no scientific or medical evidence to support the Veteran’s claim for service connection. Therefore, the Board finds no further consideration is warranted. In this case, the Board notes that the Veteran's report of a respiratory condition has been attributed to a known clinical diagnosis, COPD. As his respiratory symptoms have been associated with a clinical diagnosis, the Gulf War Veteran presumption of service connection under 38 U.S.C. § 1117, and 38 C.F.R. § 3.317 does not apply in this matter. Although the Gulf War presumption does not apply in this case, the Veteran may be entitled to service connection on a direct basis. After a review of the record, the Board finds that the preponderance of the evidence is against the claim of service connection for a COPD disability. The Veteran is currently diagnosed with COPD. However, there is no persuasive medical opinion linking the Veteran's lung condition to service. The most persuasive and well-reasoned medical opinion addressing the relationship between the current condition and service is the November 2019 VA exam, and that opinion is against the claim. The opinion was provided based upon a comprehensive review of the claims file and examination of the Veteran, and provided an adequate rationale that considered the Veteran’s in-service treatment, post-service treatment records, lay statements while addressing the contentions, conflicting opinions, and medical research. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). The private opinions are not probative for the reasons discussed above. It must also be noted there is no evidence of continuous symptoms after service, as the post-deployment assessment in 2005 plus VA evaluations done every year from 2006 through 2011 show express denials of any lung-related complaints such as shortness of breath, wheezing, chest pain, or cough. The Board recognizes the Veteran asserts that his COPD disability is related to his service; however, there is no indication that he has specialized training in diagnosing such a disorder. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this regard, the diagnosis of a lung condition requires specialized medical testing and training to identify. Thus, this lay evidence as to the diagnosis or etiology of his claimed disability is not competent medical evidence and is assigned less probative weight. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Thus, service connection for COPD (claimed as pulmonary function disease) is not warranted. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mireya Martinez 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.