Citation Nr: 21001748 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-30 330 DATE: January 11, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. FINDING OF FACT The Veteran’s respiratory condition, including COPD, is not shown to be causally or etiologically related to her military service. CONCLUSION OF LAW The criteria for service connection for a respiratory condition, including COPD, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from June 1964 to March 1966 and is a Veteran of the Vietnam War Era. This matter returns to the Board of Veterans’ Appeals (Board) from a May 2019 Remand Decision (Board Remand) of the Veteran’s appeal of a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which is the agency of original jurisdiction (AOJ). This rating decision denied the Veteran’s claim for entitlement to service connection for respiratory condition, including COPD as secondary to pneumonia related to a lung injury. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) The Veteran asserts that her COPD apnea is the result of her military service, including as the result of in-service pneumonia and related respiratory infections which were the onset of her recurrent lung and breathing issues. VA concedes that the Veteran does have a current diagnosis of COPD, first diagnosed in 2013. Therefore, the question is whether her COPD is related to or caused by her military service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 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, 557 F.3d at 1366 (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. None of the diagnosed respiratory conditions are conditions for which the chronic disease provisions of 38 C.F.R. §§ 3.307 and 3.309, apply. See also 38 C.F.R. § 3.303(b). Lay witnesses, such as the Veteran, are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed or experienced, and which are within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). However, without specialized medical training a lay witness is not competent to either diagnose or make a nexus opinion concerning most medical conditions. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to.” Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Evidence of Record The Veteran’s military service treatment records (STRs) do reference a single incident where the Veteran was treated for pneumonia in October 1964, also described as an upper respiratory infection (URI), but the condition was noted as treated and cured. Her STRs do contain a few references to coughs and cold symptoms near and prior to the date of her hospitalization for pneumonia. No complaints were noted after that date nor were there any indications of respiratory or sinus conditions noted on her separation physical documents. The Veteran’s March 1966 report of examination at separation shows that her lungs were normal, and she denied on her report of medical history completed at that time any respiratory symptoms. The Veteran’s post-service treatment records do contain notes of the Veteran complaining of and being treated for sinus and/or respiratory conditions beginning in June 1978, 12 years after her separation from the military. This first encounter was for symptoms related to cold, laryngitis and upset stomach, but her physical exam indicated that her lungs were clear. The next encounter in October 1978, was for symptoms related to sore throat, congestion, laryngitis and URI. The Veteran treated with a private medical provider, E-C.I., beginning in February 1989, for symptoms related to chest congestion, right side sore chest, and coughing after she had the flu for 3 weeks. In November 1996, E-C.I., prepared a summary of the Veteran’s treatment to that point, indicating that there were 6 incidents related to URI’s, or other respiratory infections including bronchitis/sinusitis 6 and a half year period: (1) Feb 16, 1989: Upper respiratory Tract infection - Strain right chest wall; (2) January 8, 1991 Bronchitis/Sinusitis; (3) October 18, 1991 Upper respiratory Tract infection; (4) December 16, 1993 Upper respiratory Tract infection/ Sinusitis; (5) November 7, 1994 Upper respiratory Tract infection / Sinusitis; (6) February 4, 1995 Upper respiratory Tract infection / Sinusitis; and (6) September 14, 1996 Upper respiratory Tract infection / Sinusitis. However, review of the actual encounter notes, not just the later created summary, indicates that the December 16, 1993, treatment notes are missing and the other entries list symptoms complained of, though the actual treating physician handwritten notes of the respective diagnoses are not decipherable and cannot be verified by the Board. Each of these encounters appear to have originated from the Veteran having a non-respiratory condition, such as the flu, or head congestions/ cold, and not a separate respiratory condition as its origin. Regardless, there is no indication that the Veteran was suffering from COPD during this period. During an August 1996 internal medicine consultation with Dr. M.S. for celiac disease, the attending physician examined the Veteran and found her heart and lungs are unremarkable, and there was no indication of her advising him of chronic respiratory disease of COPD. The Veteran underwent surgery in November 2003, for an unrelated medical condition. However, the surgery required her to be sedated with anesthesia. The pre- and post-operative reports all indicate inquiries of the Veteran’s medical history, including respiratory concerns, for which there is no indication of reference to her in-service pneumonia and it was noted that she specifically denied asthma, frequent bronchitis, COPD, TB, or other pulmonary problems. She did, however, advise of other medical conditions. All notations during this period indicated that her respiratory rate and volume were good, that she was able to breathe and cough freely, and her breath sounds were clear. While on vacation in Wyoming, the Veteran sought treatment at a private medical facility on November 23, 2009, for complaints of shortness of breath, sore throat and cough, which she claims started out as sinus congestion 2 days prior that turned into an upper respiratory illness with a slight runny nose, mild sore throat, cough, and congestion. The medical records did not record that the Veteran mentioned an in-service pneumonia incident or COPD. Physical examination of the Veteran showed the chest with good aeration, an occasional coarse breath sound heard and without focal areas of decreased breathing or wheezing heard. A CT Chest scan indicated no defects in the pulmonary arteries and therefore no objective evidence of pulmonary emboli or acute cardiopulmonary disease. A chest X-ray taken the same day also showed no radiographic evidence of acute cardiopulmonary disease with no enlargement of the cardiac silhouette and that her lungs were clear. The Veteran’s discharge diagnosis was viral upper respiratory infection. Over the course of many years the Veteran was given several diagnostic tests which involved her chest, some in conjunction with other conditions, including cardio related issues, or provided in support of other medical treatment such as surgery where anesthesia was required. These include chest X-rays on March 23, 1990; March 14, 1992; April 9, 1999; May 10, 2001; December 14, 2001; August 27, 2003; November 25, 2003; November 1, 2006; January 25, 2016; March 19, 2018; and January 2, 2020; all of which appear to be negative for indicators of chronic respiratory disease or COPD. For none of the above listed encounters since her discharge was there a record of the Veteran referencing her 1964 pneumonia incident or a complaint of independent chronic respiratory problems between it and these incidents. In March 2013, the Veteran was given a chest X-ray at a VA medical facility for the purpose of addressing a claimed history of COPD. This X-ray showed that the Veteran’s lungs were well expanded with an increased AP diameter of the chest compared to previous examinations due to hyperinflation and hyperlucent lungs. The x-ray also showed minimal cardiomegaly. The x-ray interpreter’s impression of the diagnostic study was: 1. Emphysema; 2. more hyperinflation; and 3. mild increased cardiomegaly compared to previous. The VA Chief of its pulmonary section concurred with the x-ray report, however, instead of emphysema the diagnosis was listed in the Veteran’s VA problem list as COPD. COPD is a broader category of separate respiratory conditions, which includes emphysema, chronic bronchitis, and others. Thus, the Veteran’s emphysema in incorporated within the broader named diagnosis of COPD. The Veteran was provided a Pulmonary Function Test (PFT) by the VA in April 2013. The April 2013 PFT Report noted initially that the Veteran experienced dyspnea (difficult or labored breath) with walking less than 100 yards with frequent wheeze. Interpretation of the PFT test results were normal spirometry, no post bronchodilator response, minimal air trapping, and normal diffusing capacity. The report also noted that the Veteran had occupational exposure to second hand chemical fumes and steel dust without further information. The Chief of the Pulmonary Section for the VA facility reviewed the test results and stated them to be “abnormal,” without further information. The Veteran again followed-up with her VA primary care physician in February 2014, as she stated she has difficulty breathing in cold weather, including shortness of breath and wheezing at times but this clears when she gets inside out of the cold. The VA physician noted that he Veteran had a chest X-ray which showed emphysema, but that her PFT was “essentially unremarkable” with no response to a bronchodilator, as such he noted that COPD was noted per her chest x-ray, but not due to her PFT. The Veteran was provided a VA examination in January 2020 for which the examiner conducted both a review of the Veteran’s file as well as an in-person examination of the Veteran. The VA examiner noted 2 respiratory diagnoses for the Veteran, the first COPD diagnose in 2013, and the second pneumonitis, diagnosed in 1964. The examiner noted the Veteran’s statement of her medical history which included her in-service pneumonia for which she was in the hospital for a week with 4 to 6 weeks recovery time, and that she has had problems with bronchitis, pneumonia and colds since that time. The VA examiner noted diagnostic testing which included 1. Chest X-ray on January 2, 2020, compared against an x-ray of August 12, 2019; which indicated no acute cardiopulmonary process and lungs with normal volumes, no focal consolidation, pulmonary vasculature within normal limits; no pneumothorax or pleural effusion; 2. A CT Scan on August 22, 2019 which revealed a 4 mm noncalcified nodule in the right upper lobe and a 3 mm noncalcified nodule in the left upper lobe; and 3. PFT on October 21, 2015 which indicated no significant diagnostic findings/ results. Based on the review of the Veteran’s record and in-person examination, the VA examiner opined that the Veteran’s COPD is less likely than so (less than 50 percent likely) incurred in or caused by an in-service injury, event or illness. The rational given was that while the Veteran’s STRs confirm the Veteran was hospitalized and treated for pneumonia the records also indicate that after treatment she was “cured” and that while CPRS records confirm a diagnosis of COPD in 2013, the diagnosis was made until 49 years after her bout of pneumonia in the military. VA also obtained an addendum opinion dated September 9, 2020, for which the VA examiner who performed the January 2020 VA examiner was asked to address some of the concerns raised by the Veteran, including the claim that a new PFT was required and as related to the comparison of various diagnostic tests. The VA examiner noted that while the Veterans PFT performed in 2013 was read as abnormal, the report also reveals the abnormality is minimal with normal spirometry, no bronchodilator response, minimal air trapping, and normal diffusion capacity. The examiner stated that review of records revealed no documentation that the Veteran has been treated for pneumonias, COPD exacerbations or other respiratory illnesses other than allergic rhinitis since her discharge. The examiner highlighted the fact that the Veteran is prescribed inhalers, where one is for “as needed” use and the other inhaler is a steroidal to decrease inflammation, as with allergic rhinitis. The examiner stated that with COPD radiological exams normally show increased radiolucency of the lung, a flat diaphragm and a long, narrow heart shadow, but neither of the CT scan reports indicate any of these findings. The report of the most recent chest x-ray (08/12/2019) was noted to have found no abnormalities, other that the previously identified nodules. Based on these factors, the examiner opined that it is not likely a new PFT would be of any benefit as the Veteran has not had an increase/change in symptoms or exacerbations. The VA examiner further remarked that the most important risk factor for COPD is cigarette smoking, and that other exposures, including passive smoke and biomass fuel use also play roles. The amount and duration of smoking contributes to disease severity. The Veteran’s CPRS records, most recently August 12, 2020, indicate she has a history of exposure with secondhand smoking. Therefore, the examiner opined the Veteran’s claimed condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. No opinions from a trained medical professional were received by VA which assert that the Veteran’s respiratory condition, including COPD, is related to her military service. The Veteran provided testimony at an October 2018 Board hearing with the undersigned Veterans Law Judge (VLJ), and at which she was accompanied by her representative. A copy of the transcript of that hearing is attached to her file. During this hearing the Veteran testified that she had pneumonia while in service for which she was hospitalized for about a week, and otherwise only had colds while in service, and she does not sure how many times those were entered into her record. She stated that she has had respiratory problems since her in-service pneumonia and that she gets bronchitis once or twice per year, usually wintertime and that she is on allergy medicine. She denied having pneumonia since being discharged from the military. She stated she was first told she had COPD in 2013, after treatment for a car accident revealed the condition. She also indicated that she gets her treatment through VA and that she has never smoked. The Veteran provided several written statements related to her claim, most of which reiterate facts related to her medical history or identify issues with the VA processing her claim. In her December 2015 Notice of Disagreement (NOD) the Veteran restates facts related to her in-service pneumonia but adds that she believes she was never “cured” as she continued to have respiratory problems since. She also stated that her various jobs did not subject her to risks which she believes would cause her to develop COPD. Finally, she argues that VA should have provided her with an examination or verify claimed scar tissue in her upper lung was from her pneumonia. In her June 2016 Form 9, the Veteran asserts that her claim is not just for COPD, but for respiratory conditions to include COPD with an enlarged heart, pneumonia, multiple URIs and bronchitis. The Veteran also asserts that the rating decision was full of errors and oversights, including that VA improperly refers to her STR’s as including a reference to a 1977 treatment from military doctors, which is 10 years after she separated from service. Other discrepancies and omissions are listed which she claims violate various regulations and laws require VA to consider the circumstances of her military service together with pertinent medical and lay evidence. She states that VA never addressed scarring in her upper lungs, which she now identifies as fibrosis. In a June 2016 written statement, the Veteran confirms that her STRs and VA medical treatment records have been received and reviewed by VA. However, she argues that the statements and concerns in her Form 9 we not considered, and that evidence was not added. Specifically, she asserts that VA did not “incorporate” her asserted fact that her in-service pneumonia was noted to have caused scarring in her lungs. In her August 2020 written statement, the Veteran asserts additional problems with the VA’s processing of her claim and the January 2020 examination. First, she claims that her VA examination was not complete because the examiner was not a pulmonologist and the opinion was rendered on a comparison of x-rays performed o January 2, 2020 and August 12, 2019. The Veteran does not explain why an actual pulmonologist is needed or what specifically renders another otherwise qualified medical provider to adequately review the medical documentation in this case. The Veteran then goes on to complain that no new PFT was performed, acknowledging at the same time that 2 other PFTs were already given to her in the past. She also stated that the August 2019 CT scan was the only one referenced and that she did not remember another one being performed. The Board notes that a CT scan was also conducted in November 2009 while she was in Wyoming and that CT scan was negative for pulmonary injury or diseases, including no indication of any scarring in her lungs. She also states that she had at least 2 MRI’s of her chest in association with heart treatment, which she claims were not referenced. The Veteran again cites various regulations and laws, claiming VA violated its duties therein, and that “[o]n every occasion, the VA has failed to provide a complete review of [her] medical history.” Analysis and Findings: The Board has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as to the issues in the claim and this appeal. After review of the record the Board finds that the preponderance of the competent and credible evidence is against the Veteran’s claim. First and foremost, VA acknowledges that the Veteran has a current diagnosis of COPD, as of April 2013. What remains at issue is whether the COPD is related to service. That is where the Veteran’s claim fails on all theories of entitlement raised. VA acknowledges that the Veteran had a single instance of pneumonia while she was in service in October 1964 with only a few other references to respiratory illness all of which occurred around the time she was hospitalized for her pneumonia. The medical records stated that she was treated and “cured” of her pneumonia. There are no records which indicate scarring in her lungs (either while in service or after) or other residuals. There is no reference to continued or chronic symptoms listed in her separation physical, and the Veteran denied a history of shortness of breath and all respiratory symptoms upon discharge in March 1966. The Board finds the January 2020 VA examination and September 2020 addendum opinions to be highly probative. The September 2020 addendum opinion in particular was sufficiently detailed and addressed numerous of the Veteran’s concerns. The evidence cited by the VA examiner shows that since the Veteran was discharged in 1966, she only has shown respiratory distress second to allergic rhinitis, cold and flu symptoms, and that she was not treated for pneumonias, COPD exacerbations, or other respiratory illnesses other than allergic rhinitis, until her diagnosis in 2013. The VA examiner also reviewed, compared, and analyzed the numerous radiological tests performed on the Veteran which lack a showing of typical findings associated with COPD, such as increased radiolucency of the lung, a flat diaphragm and a long, narrow heart shadow. The examiner also discussed how the recent x-ray showed no abnormalities, except for newly seen nodules. Since there have not been significant changes in the Veteran’s medical condition, and the issue at hand is entitlement to service connection, not the severity of her condition, no new PFT is required. The evidence of record also supports the fact that the Veteran was not treated for a COPD related disease until 2013 and that most diagnostic tests both before and after this diagnosis did not reveal abnormalities. The Board has considered the Veteran’s statements and finds them to be of limited probative value. The Veteran’s assertions of VA failing to adequately address her full and complete medical record and history, or that various documents were not considered to have been addressed by the VA examiner, are inconsistent with the record. The Board itself has also conducted an exhaustive review of her entire record and finds no remaining alleged discrepancies to be relevant. The Veteran is not shown to have medical training or experience to render her statements competent related to her assertion of her in-service pneumonia being the cause of her current COPD, that she has an enlarged heart that was either caused by her pneumonia, or that there exists residual scarring in her lungs from her pneumonia. These are matters better opined on by a medical professional with expertise, which the Veteran is not shown to have. As such, the competent and consistent evidence weighs against the claim. The Board finds to be without merit the Veteran’s assertion that the VA examination and opinions received are inadequate because they were not performed or prepared by a pulmonologist. The Veteran does not provide any reason for this assertion other than the VA examiner was not a pulmonologist. She makes no specific contention that the examiner must be a pulmonologist to render a competent opinion. The Board finds the VA examiner competent and credible and assigns high probative weight as she provided rationale consistent with the record that included citations to supporting medical literature. The examiner also relied on diagnostic testing, most of which was reviewed by VA pulmonary specialists, including the Chief of the Pulmonary Section for the VA medical facility at the time of the test. The examiner, as did the Board, looked at both the diagnostic tests and their results, as well as the follow-on treatment and notes from the Veteran’s medical providers. Both the U.S. Court of Appeals for Veterans Claims (Court) and the Federal Circuit have held that the Board is entitled to presume the competence of a VA examiner and specific challenges to a VA examiner’s competency must be raised by the Veteran to overcome this presumption. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009); Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010); see also Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). The Court held in Cox that the Board is entitled to assume the competence of a VA examiner. Absent evidence or argument which called in to question a VA examiner’s professional competence, the Court concluded in Cox that it is not error for the Board to presume that a VA examiner is competent. See also Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (explicitly extending the presumption of competence discussed in Cox and Rizzo to VA examiners). The Board finds that neither a new examination performed by a pulmonologist nor new PFT are required. Concerning the Veteran’s claim as it relates to an enlarged heart, the numerous diagnostic tests given to her, including the most recent August 24, 2020 CT scan of her chest, indicate that the Veteran’s heart is not enlarged. Without a current disability, service connection cannot be granted, and that theory of entitlement is denied. Concerning the Veteran’s claim that VA did not consider her assertion that she has scarring in her lungs, the numerous diagnostic tests over many years do not indicate the presence of any scarring nor do the numerous treatment records indicate the existence of such scarring or “fibrosis” in her lungs. The VA examiner indicated that the Veteran does not have any scars related to any conditions or the treatment of any respiratory conditions for which she is diagnosed. While the nodules in her lungs could possibly be considered scarring, these were not identified until the August 2019 chest x-ray, and earlier radiographic imaging prior to this x-ray did not reveal the presence of the nodules. It was more than 50 years after her discharge when the nodules were first identified. The evidence does not support any findings of lung scarring or that the current lung nodules are related to her military service. In reaching these conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). The Veteran’s claim is denied. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bannach, 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.