Citation Nr: 21002370 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-38 452 DATE: January 13, 2021 ORDER Service connection for chronic obstructive pulmonary disease (COPD), including as a qualifying chronic disability under 38 C.F.R. § 3.317, is denied. Service connection for obstructive sleep apnea (OSA), including as a qualifying chronic disability under 38 C.F.R. § 3.317, is denied. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia theater of operations after August 1990. 2. The Veteran’s COPD was not caused by his military service, to include service in the Southwest Asia theater of operations during the Persian Gulf War. 3. The Veteran’s OSA was not caused by his military service, to include service in the Southwest Asia theater of operations during the Persian Gulf War. CONCLUSIONS OF LAW 1. The criteria to establish service connection for COPD have not been met. 38 U.S.C. §§ 1131, 1117, 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317. 2. The criteria to establish service connection for OSA have not been met. 38 U.S.C. §§ 1131, 1117, 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1971 to September 1991. In October 2018, the Board of Veterans’ Appeals (Board) remanded this matter and directed the Regional Office (RO) to schedule additional VA examinations, which were completed in November 2019. The Board also directed the RO to obtain the Veteran’s complete service personnel records (SPRs) and confirm whether the Veteran served in Saudi Arabia during Operation Desert Shield. Review of the completed development reveals that, at the very least, substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § 1110. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be also warranted for veterans who exhibit objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or that became manifest to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317 (a)(1). The “Persian Gulf War” means the period beginning on August 2, 1990 and ending on the date thereafter prescribed by Presidential proclamation or by law. 38 U.S.C. § 101(33). The “Southwest Asia theater of operations” includes Saudi Arabia. 38 C.F.R. § 3.317 (e)(2). The Veteran is a Persian Gulf veteran within the meaning of 38 C.F.R. § 3.317. While service personnel records do not directly establish the Veteran’s physical presence in Saudi Arabia after August 1990, personnel records consistently reference his direct participation in Operation Desert Shield and Desert Storm and receipt of the Southwest Asia Service Medal. These records include travel voucher reimbursements, performance reports, and temporary duty (TDY) orders reflecting “special mission travel” to a classified location to participate in Operation Desert Storm/Shield. Additionally, a June 1991 service dental record indicates the Veteran was ineligible to donate blood because of his tour of duty in Saudi Arabia during Operation Desert Storm. In the June 2020 Supplemental Statement of the Case (SSOC), the RO indicated the service department was unable to verify service in Saudi Arabia. The RO relied on Beneficiary Identification Records Locator Subsystem (BIRLS) Information Reports dated July 2019 and June 2020 which merely note the absence of a “Gulf War Indicator,” without defining that term. The July 2019 report indicates Gulf War service from August 27, 1990 to March 14, 1991 but does not indicate where these dates were derived from. Additionally, the claims file does not indicate any attempt was made to submit a Special Operations Forces Incident Document to the U.S. Special Operations Command (USSOCOM), as directed by the October 2018 Board remand. With respect to the Veteran’s Gulf War service, the evidence is in approximate balance and additional development is not necessary. The Board will afford the Veteran the benefit of the doubt and finds that he is a Persian Gulf veteran for the purposes of 38 C.F.R. § 3.317. However, even given the Veteran’s Gulf War service, presumptive service connection under 38 C.F.R. § 3.317 is not warranted. Under 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. 38 C.F.R. § 3.317 (a)(4). COPD and OSA are known clinical diseases and not undiagnosed illnesses or manifestations of a medically unexplained chronic multi symptom illness. They are also not included on the list of presumptive diseases associated with service in the Southwest Asia theater of operations. 38 C.F.R. § 3.317 (a)(1)(i)-(ii). Accordingly, service connection for COPD and OSA cannot be granted under the presumptive provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. However, the Veteran is not precluded from establishing service connection on a direct basis. In deciding an 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 favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Service connection for COPD The Veteran was diagnosed with COPD in 2009. He contends his COPD is related to exposure to chemicals, fumes, and other airborne irritants during service, including during his Gulf War service. Service treatment records (STRs) do not indicate a diagnosis, treatment or symptoms of COPD. In September 1975, January 1976 and October 1976, the Veteran reported symptoms including a dry cough, sore throat, malaise, fever, congestion and headaches. In each instance, the attending clinician noted the Veteran’s lungs were clear and gave impressions of a viral syndrome and/or upper respiratory infection (URI). Periodic reports of medical examination dated January 1976, January 1977, April 1982, and February 1986 indicate that chest X-rays were negative for any abnormalities. In a February 1985 record of care, the Veteran reported smoking two packs of cigarettes per day (PPD) for ten years. A February 1986 record indicates pulmonary function testing did not reveal a suspected pulmonary diagnosis. At that time, the Veteran continued to report a 2 PPD smoking history for 12 years. A separate “Coronary Artery Risk Evaluation” indicated “Y” as to whether the Veteran smoked. In a June 1991 dental record, the Veteran reported smoking one and a half packs of cigarettes daily. He also indicated he had been told he was ineligible to donate blood because of his tour of duty in Saudi Arabia during Operation Desert Storm. In his August 1991 separation report of medical examination, the Veteran denied ever having had shortness of breath (SOB), pain or pressure in his chest, chronic cough, or asthma. The Veteran’s retirement physical indicated a normal chest and lungs evaluation, although he reported smoking 2 PPD. The Veteran’s STRs are highly probative both as to both the Veteran’s subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran’s then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board’s decision); see also LILLY’S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803 (4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). Although not documented in his STRs, the Veteran contends he was exposed to airborne irritants during active service. In an August 2015 statement, he asserted he was exposed to chemical fumes, asbestos, industrial dust, sandstorms, and extreme heat during his 190-day deployment to Saudi Arabia. He indicated additional exposure to dust storms while stationed in Oklahoma. The Veteran explained that he did not report all his medical concerns during service and believed he could update his documentation at a later time. However, these assertions are contradicted by the Veteran’s August 1991 retirement report of medical history, where he reported being in good health and denied having any illness or injury other than those noted in the examination report. A July 2007 non-VA medical record indicates the Veteran reported to the Emergency Room (ER) for respiratory failure. The attending physician indicated a CT scan of the Veteran’s chest revealed multiple pulmonary emboli (blockage of the pulmonary arteries of the lungs). The physician noted the Veteran’s obesity and 20-year history of smoking tobacco which amounted to a 30-pack year history. The Veteran indicated he quit smoking approximately one year prior. He also reported a history of experiencing long pauses in his respiratory pattern and snoring. A March 2009 record indicates the Veteran again presented to the ER with respiratory failure and had multiple pulmonary emboli. X ray imaging performed at that time showed the first signs of COPD and ultimately lead to a diagnosis. In an August 2015 letter, the Veteran’s private physician (C.P., M.D.) opined that the Veteran’s COPD was caused by exposure to hazardous fumes and asbestos during service, including his service in Saudi Arabia during Operation Desert Storm. The physician indicated it is well known that exposure to industrial dust, chemical fumes and asbestos are contributing factors to COPD. She indicated the Veteran did not have COPD early on in his military career and developed breathing difficulties and frequent chest-related problems after Desert Storm. C.P. stated her opinions were based on her 40 years’ experience as an Internal Medicine/ Pulmonary physician. In a June 2016 VA opinion, a VA examiner indicated the Veteran’s COPD is less likely than not related to service. The examiner reviewed the Veteran’s STRs, lay statements, private medical records, and the 2012 and 2015 private medical opinions. She explained that medical literature indicates emphysema is caused by long-term exposure to airborne irritants including tobacco and marijuana smoke, air pollution, and manufacturing fumes. The examiner noted the Veteran’s self-reported 20-year history of cigarette smoking is easily considered a long-term exposure to tobacco smoke. She further indicated that the Veteran’s claimed exposure to airborne irritants in Saudi Arabia would not meet the definition of long-term exposure. The Veteran was afforded a VA respiratory conditions examination in November 2019. He reported smoking cigarettes from age 22 to age 58 and reported smoking 1.5 packs per day (PPD) during that time period. The examiner indicated the Veteran’s smoking history equated to a 50-pack year history, although the Veteran denied this. The Veteran reported first experiencing coughing, wheezing, chest pain, dizziness and loud breathing in 1982 while he was stationed in Germany. He stated he has had shortness of breath during exercise for the past 20 years. The VA examiner indicated the diagnosis was COPD with a clear onset from tobacco use and that the Veteran did not have any other diagnosed respiratory condition (other than OSA). The examiner explained that the Veteran’s 50 pack-per-year (PPY) history of tobacco use significantly increased his risk for COPD, and that tobacco use is the cause of the Veteran’s COPD. In July 2020, the Veteran submitted an additional letter from C.P., M.D. reiterating her previous opinion that the Veteran’s COPD is related to service. She stated COPD can go undiagnosed for many years and therefore the Veteran would not have reported COPD during service. C.P. indicated the Veteran’s exposure to hazardous fumes including industrial dust, chemical fumes, asbestos and sandstorms from 1971 to 1991 would be considered long term exposure and would certainly be enough time to have a lasting effect on the Veteran’s lungs. The examiner stated she spoke with the Veteran regarding his smoking history and he reported smoking “very infrequently,” until he was deployed in 1990-91, and significantly increased his smoking in his last eight months of service due to stress, lack of sleep, and interrupted sleep patterns. The Veteran denied ever having a 50 PPY history. C.P.’s August 2015 and July 2020 opinions have limited probative value because they are not based on a complete and accurate medical history. In other medical reports as detailed above, the Veteran consistently reported an extensive smoking history. See Sanchez-Benitez v. West, 13 Vet. App. 282, 286 (1999) (medical evaluation that is merely a recitation of a veteran’s self-reported and unsubstantiated history has no probative value). C.P. accepted the Veteran’s statements that he smoked “infrequently” before his deployment. These statements directly contradict STRs dated from 1985-86 where the Veteran reported smoking 1.5-2 PPD during the previous 12 years. The STRs are highly probative because the Veteran had a strong motive to tell the truth in order to receive proper care. See Rucker, supra. The same cannot be said for the statements the Veteran made to C.P. regarding his smoking history. The Board finds that the Veteran’s statements to C.P. are not credible. As C.P.’s opinions are based on a factually inaccurate and/or incomplete medical history, their probative value is greatly diminished. See also Swann v. Brown, 5 Vet. App. 229, 232 (1993) (noting the weight of a medical opinion is diminished when it is based on an inaccurate factual premise or an examination of limited scope.). The preponderance of the evidence is against finding service connection for COPD. As indicated above, the private medical opinions are not probative because they are based on an inaccurate medical history, namely the Veteran’s smoking history. The June 2016 and November 2019 VA opinions are significantly more probative because they provide a factually based rationale linking the Veteran’s COPD with his smoking history. Additionally, the medical evidence indicates the Veteran’s COPD is a clear diagnosis with a known cause, and therefore presumptive service connection under 38 C.F.R. § 3.317 is not warranted. As the preponderance of the evidence is against the claim, the claim is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 2. Service connection for OSA Non-VA treatment records reflect that the Veteran was diagnosed with OSA in a 2011 sleep study. He contends his OSA is related to service. STRs do not contain reports of difficulty sleeping, breathing, or a diagnosis of sleep apnea. While the Veteran reported cold symptoms, including congestion and a swollen throat, in each instance the diagnosis was a respiratory infection and his lungs were clear. Periodic reports of medical examination reflect that the Veteran consistently denied difficulty sleeping, shortness of breath, or asthma. An October 1975 clinical record indicates the Veteran was placed on an overweight program and received a dietary consultation. An October 1985 chronological record of care indicates the Veteran’s weight continued to be monitored. The author of the record noted the Veteran was “slightly obese,” and reported easy weight gain. In his August 1991 retirement physical, the Veteran’s relevant clinical evaluations were normal and he denied ever having had shortness of breath, asthma, or frequent trouble sleeping. The Veteran reported having ear, nose or throat trouble, although the examining physician indicated this referred to an abundance of earwax. Although STRs are silent for OSA or breathing difficulties, the Veteran contends that he snored frequently in service. In an August 2015 statement, the Veteran reported experiencing loud snoring, waking up with a choking or gasping sensation, insomnia, sleepiness while driving, restless sleep, and episodes of breathing cessation during sleep. He reported these symptoms began in service and continued to the present. The Veteran stated that before he could document these symptoms, he was deployed to Saudi Arabia, where he was exposed to sandstorms, diesel fuel and other airborne irritants. The Veteran reported that when he was discharged he “put [his] ailments aside,” and “let some medical documentations and concerns slide,” because he felt he could update his documentation at a later time. The Veteran also submitted two lay statements from fellow servicemembers who reported witnessing his loud snoring, daytime sleepiness and lack of energy during the day. In an April 2015 statement, E.B. reported witnessing the Veteran’s restless sleep, mood changes, attention difficulty, and insomnia. E.B. reported that the Veteran appeared to be sleepwalking and was slow to respond to others in social interactions. A July 2007 non-VA medical record indicates the Veteran reported to the Emergency Room (ER) for respiratory failure. The physician indicated that sleep apnea was suspected, noting the Veteran’s obesity and 20-year history of smoking tobacco which amounted to a 30-pack year history. The Veteran indicated he quit smoking approximately one year prior. He also reported a history of experiencing long pauses in his respiratory pattern and snoring. The physician noted the Veteran’s body and jaw shape would predispose someone to apneas. In the August 2015 private opinion, C.P., M.D. stated the Veteran’s OSA is more likely than not attributed to his COPD and long-term exposure to chemicals, motor oil, and sand. She indicated the Veteran did not have OSA at the start of service but developed breathing difficulties, daytime somnolence, snoring, and chest-related problems shortly after his Gulf War service. In the 2016 VA opinion, the examiner indicated the Veteran’s OSA is less likely than not related to service. While she acknowledged the lay statements that the Veteran snored frequently during service, the examiner noted that snoring is not unique to sleep apnea, nor is it a precursor to, or a diagnostic of sleep apnea. The examiner noted the Veteran has been consistently evaluated as morbidly obese, and that obesity is a known cause of sleep apnea. At the November 2019 VA sleep apnea examination, the Veteran reported onset of symptoms in 1982, including insomnia, coughing, dry mouth and loud snoring. He attributed these symptoms to exposure to dust, vehicle fumes and heat. The Veteran reported having a sleep study in 1998-99 and being given a continuous positive airway pressure (CPAP) machine. The VA examiner indicated the Veteran’s OSA has a clear and specific etiology (cause), namely, smoking and obesity. The November 2019 VA examiner explained that risk factors for OSA include advancing age, male gender, obesity, craniofacial morphology, or upper airway soft tissue abnormalities. The examiner indicated the risk of developing OSA progressively increases as body mass index, neck circumference, and waist-to-hip ratio increases. He cited one study where a 10 percent increase in weight was found to increase risk of OSA six-fold. The examiner also noted that smoking increases the risk of OSA, or at least aggravates existing symptoms. He cited one study where current smokers were found to be nearly three times as likely to have OSA than past or nonsmokers. The examiner further explained that obesity is a multi-faceted disease state and a specific cause cannot be elicited to any level of certainty. Based on this evidence, the VA examiner concluded the Veteran’s OSA is more likely related to his obesity and neck circumference and not his Gulf War service. In her July 2020 addendum opinion, C.P. affirmed her previous opinion that the Veteran’s OSA is related to service. She acknowledged that the Veteran’s morbid obesity can contribute to his sleep apnea, but stated the Veteran was not obese during service and therefore obesity and neck circumference would not have been an immediate issue. C.P. stated the Veteran’s interrupted sleep patterns combined with the stress of war, increased smoking, and overall exposure to dust, sandstorms, asbestos and chemical fumes would more likely than not contribute to the Veteran’s OSA. She opined that the Veteran’s obesity became more of a problem after service. The examiner further indicated that the process of completing discharge paperwork can be stressful, complicated, and can lead to service members’ omitting important facts. C.P.’s August 2015 and July 2020 opinions have limited probative value. These opinions are based on the Veteran’s self-reported history and do not address his complete medical history. See Sanchez-Benitez, supra. Notably, C.P. stated that the Veteran was not obese in service, however, an October 1985 STR indicates the Veteran was evaluated as mildly obese. Numerous STRs show that the Veteran’s weight was monitored throughout service and he received diet and weight loss counseling. C.P. did not account for the fact that the Veteran was overweight and, at a time, obese during service. Her opinions are not based on a complete and accurate medical history and their probative value is significantly diminished. See Sanchez-Benitez, Swann, supra. The preponderance of the evidence is against finding service connection for OSA. The weight of the medical evidence indicates the Veteran’s OSA is related to his obesity and not his military service. The June 2016 and November 2019 VA opinions are significantly more probative because they provide a factually based rationale linking the Veteran’s OSA with obesity. The VA opinions outlined the Veteran’s specific history of obesity and cited several medical studies indicating a connection between obesity and OSA. In contrast, the private medical opinions did not address STRs reflecting that the Veteran was overweight, and at times, obese during service. Accordingly, the private opinions have limited probative value as to the ultimate issue of the cause of the Veteran’s OSA. Further, the evidence indicates the Veteran’s OSA is a clear diagnosis with a known cause, and therefore presumptive service connection under 38 C.F.R. § 3.317 is not warranted. The claim is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hiaasen 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.