Citation Nr: 21067838 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 16-57 767 DATE: November 5, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is granted. FINDING OF FACT The competent and probative evidence of record is in equipoise as to whether the Veteran's COPD is caused by his in-service exposure to dust storms, smoke from burning trash or feces, and exhaust fumes. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria to establish service connection for COPD, due to in-service exposure to dust storms, smoke from burning trash or feces, and exhaust fume, have been met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1985 to March 1986 and from February 2007 to May 2008, to include service in Afghanistan from May 2007 to April 2008. This case comes to the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with the AOJ's determination, and the present appeal ensued. This matter was previously before the Board in July 2019, at which time it was remanded for further development. Entitlement to service connection for COPD Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran asserts that his in-service exposure to dust storms, smoke from burning trash or feces, and exhaust fumes, while deployed to Afghanistan, led to the development of COPD. For the reasons expressed below, the Board concludes that service connection for COPD is warranted. The evidence reflects a diagnosis of COPD during the appeal period, and the Veteran's service department records bolster his assertion of probable in-service exposure to dust storms, smoke from burning trash or feces, and exhaust fumes, while deployed in Afghanistan, as a Veteran's Military Occupational Specialty (MOS) wheeled vehicle mechanic, while serving in Afghanistan from May 2007 to April 2008. The Veteran's post deployment health assessment indicated that he had been exposed to DEET, smoke from burning trash or feces, vehicle and truck exhaust fumes, and sand or dust, among other exposures. As such, the first two elements necessary to establish direct service connection have been demonstrated and the crux of the Veteran's case is whether this in-service exposure at least as likely as not resulted in COPD. Having concluded that the record reflects that the Veteran experienced in-service exposure to dust storms, smoke from burning trash or feces, and exhaust fumes, and developed COPD, the remaining matter to be addressed is whether a causative relationship exists. To this point, the Board observes that such a relationship is not presumed by VA; however, the only medical nexus evidence appears to be unfavorable to the Veteran's claim. Specifically, the Veteran was provided a VA examination in January 2020. The VA examiner opined that the Veteran's COPD is less likely than not caused by in-service. In providing the opinion, the examiner stated that the Veteran's service treatment records were absent any treatment or diagnosis of COPD, however the examiner also discussed that COPD is a disability that occurs gradually. The examiner did not address the Veteran's statements of exposure to various fumes, such as smoke from burning trash or feces and dust storms, therefore this opinion does not rule out in-service causation via exposure to hazardous fumes. Additionally, the examiner did not address the Veteran's history of being a nonsmoker. The Board finds that in reaching his ultimate conclusion, the examiner failed to take adequate notice of this exposure to dust storms, smoke from burning trash or feces, and exhaust fumes. Therefore, the examiner failed to take into account all of the evidence favorable to the Veteran. The examiner did not provide an etiology of the Veteran's COPD, other than to provide that COPD progresses slowly over time. The examiner also relied on the lack of an in-service diagnosis and the diagnosis many years after service, neither of which are dispositive. The examiners also did not adequately address the Veteran's lay statements. Jandreau v. Nicholson, 492 F.3d 1372 (2007), Buchanan v. Nicholson, 451 F.3d 1331 (2006), Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Based on the above, the Board finds the VA examination and ultimate conclusion are inadequate and of little probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). However, the examiner's opinion concerning the gradual onset of the condition does have probative value and tends to support the claim. The Veteran is competent to report his experiences during service and has asserted that he did not experience respiratory problems until his deployment. Additionally, the Veteran has consistently maintained that he is a lifelong non-smoker, and that any exposure to smoke and chemicals did not occur until he was stationed in Afghanistan. Further, the Veteran, in the April 2008 post deployment health assessment, indicated that during and since service, he developed a chronic cough and had respiratory difficulty. The Veteran has maintained that these symptoms have been present since his deployment. In addition, as was noted above, one of the opinions expressed by the January 2020 examiner tends to support the claim. After a thorough consideration of the evidence, the Board finds that the evidence is in relative equipoise. When there is an approximate balance of positive and negative evidence regarding any issue material for determination, the Board shall give the benefit of the doubt to the claimant. In sum, the Board concludes that the Veteran's in-service exposure to dust storms, smoke from burning trash or feces, and exhaust fumes resulted in the eventual development of COPD. In such case, the governing laws provide that service connection for this disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. W. Morgan, 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.