Citation Nr: 21066577 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-42 257 DATE: November 1, 2021 ORDER Entitlement to service connection for a chronic respiratory disorder, to include emphysema and chronic obstructive pulmonary disease (COPD) is denied. FINDING OF FACT A chronic respiratory disorder did not manifest in service or until many years thereafter; and, the preponderance of the evidence fails to establish that the Veteran's chronic respiratory disorder, to include emphysema and COPD is causally or etiologically related to any disease, injury, or incident in-service. CONCLUSION OF LAW The criteria for service connection for a chronic respiratory disorder, to include emphysema and COPD are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1966 to August 1968, with service in the Republic of Vietnam. This matter comes before the Board of Veterans Appeals (Board) on appeal from a rating decision issued in November 2014 by a Department of Veterans Affairs (VA) Regional Office (RO or AOJ). In August 2019, the Veteran testified at a Travel Board Hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This case was previously before the Board in April 2021 when it was remanded for additional development. The matter now returns for further appellate review. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to Service Connection for a Chronic Respiratory Disorder, to include Emphysema and COPD The Veteran asserts that his chronic respiratory disorder was caused by repeated pneumonia while on active duty in Vietnam. See June 2012 claim. During his August 2019 hearing, the Veteran further testified that he was continuously exposed to smoke off the artillery, and that dust was prevalent when the guns were firing. He also testified that he slept in damp conditions. 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). The Veteran meets the first criteria of service connection, a current disability. The evidence of record shows that he is diagnosed with COPD which a VA examiner determined encompasses the claimed emphysema. See June 2021 VA examination. However, the Veteran is unable to satisfy the remaining criteria of service connection-an in-service incurrence and evidence of a nexus between the in-service incurrence and the current disability. The Veteran's service treatment records note a diagnosis of pharyngitis. At that time, the Veteran had complaints of sore throat and dysphagia. See December 1966 service treatment record. The Veteran's July 1968 separation physical noted a minor cough, but was otherwise negative for any respiratory complaints or conditions to include chronic or frequent colds, shortness of breath, or chronic cough. In August 2019, the Veteran testified that he was continuously exposed to smoke off the artillery, that dust was prevalent when the guns were firing, and that he slept in damp conditions and was exposed to the elements. He testified that he experienced shortness of breath while on active duty and that he has continued to have problems with his breathing. The June 2021 VA examiner rejected the Veteran's report of experiencing a chronic respiratory disorder in service due to there being no evidence found to support either evaluation or treatment for a respiratory disorder in-service. The examiner noted the Veteran's post-service treatment records indicated the Veteran had a 15-year history of pulmonary emphysema, and that he smoked for 20 years prior to quitting and that he had denied any other symptoms. VA obtained private medical records. A March 2007 chest Xray showed remote granulomatous disease change with no evidence of an acute cardiopulmonary process. A June 2007 chest Xray showed mild COPD changes without acute abnormality. An April 2008 chest Xray showed stable COPD changes as well as remote granulomatous disease changes within right hemithorax and minimal parenchymal scarring at the left lung base. A June 2012 assessment indicated the Veteran had a history of COPD based on smoking. A subsequent June 2012 private treatment record noted the Veteran had dyspnea on hills and stairs, that he had smoked cigarettes for 20 years, one pack per day, that he had quit smoking 25 years prior, and that his symptoms included cough and frequent wheezing. A September 2014 private treatment record noted complaints of wheezing and a history of nicotine dependence. The record indicates that in September 2015, the Veteran established care for pulmonary emphysema with the VAMC. At that time, it was noted the Veteran had a history of emphysema for approximately 15 years, that he was an ex-smoker for 20 years, that he was using a pro-air inhaler, and that he denied any other symptoms. A September 2017 chest Xray noted a history of emphysema since 2000. It showed pulmonary hyperinflation which may indicate COPD and evidence of prior granulomatous disease. A December 2017 chest Xray showed nuclear space disease, hyperinflation of the lungs with flattening of the hemidiaphragms bilaterally which can be seen in the setting of COPD, and an apparent dilation of the descending thoracic aorta. The Veteran then underwent a VA examination in March 2020 during which he reported a history of smoking one pack of cigarettes per day for 12 to 15 years. The Veteran reported that his condition onset in the 1970s, after exiting service when he experienced shortness of breath. He stated that he had pneumonia a couple of times in service and again when he got out. He endorsed recurrent episodes of shortness of breath and that he was eventually diagnosed with COPD. The VA examiner noted diagnoses of COPD and emphysema. The examiner opined that the Veteran's respiratory condition was less likely than not related to service. The examiner's rationale was based on a lack of service treatment records, and a finding that the Veteran's had smoked until August 2009 which the examiner found to be the likely cause of his mild COPD and emphysema. See March 2020 VA medical opinion. A clarifying opinion was obtained in June 2021. The examiner opined the Veteran's respiratory condition was less likely than not related to any aspect of the Veteran's service to include exposure to environment elements. The examiner stated the Veteran was enlisted for two years and that he was not exposed to enough environmental factors to cause COPD. The examiner determined that the 20-year history of tobacco abuse would lead to the current diagnosis of emphysema. The examiner noted the Veteran was seen in-service once with a high temperature and a sore throat and that a cough was noted on the Veteran's separation physical. The examiner stated there is no record of an evaluation or treatment for said cough. The examiner added that a cough in a 21-year-old can be from GERD, a viral syndrome, or allergies and that it is less likely than not from COPD. The Board has considered the Veteran's lay testimony connecting his current chronic respiratory disorder, to include emphysema and COPD to service. While it is true that the Veteran is competent to report his symptoms and history of treatment, the Veteran, as a lay person, is not competent to make medical conclusions, especially as to such complex issues as the etiology of his currently diagnosed emphysema and COPD. See Charles v. Principi, 16 Vet. App. 370, 374- 75 (2002). Given the Veteran's lack of demonstrated medical expertise, the Board finds the June 2021 VA examiner's opinion to be the most probative evidence of record as to the relationship between the Veteran's respiratory disability and service, and this opinion ultimately outweighs the Veteran's contentions as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Layno v. Brown, 6 Vet. App. 465 (1994). Here, the most probative evidence of record indicates that the Veteran's chronic respiratory disorder, to include emphysema and COPD can be attributed to risk factors other than service. The Veteran's treating physician in June 2012, noted the Veteran had a history of COPD based on smoking and a September 2014 private treatment record noted complaints of wheezing and a history of nicotine dependence. The weight of the evidence demonstrates that the Veteran's chronic respiratory disorder, to include emphysema and COPD is the cumulative result of a decades-long habit of smoking one pack of cigarettes a day. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Service connection for a chronic respiratory disorder, to include emphysema and COPD is not warranted. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.