Citation Nr: 21068611 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 19-20 755 DATE: November 10, 2021 ORDER Service connection for a lung disability, including chronic obstructive pulmonary disease (COPD) and emphysema status post bilateral lung transplant, is granted. Service connection for osteoporosis, secondary to the lung disability, is granted. Service connection for neuropathy of the right lower extremity, secondary to the lung disability, is granted. Service connection for neuropathy of the left lower extremity, secondary to the lung disability, is granted. FINDINGS OF FACT 1. There is at least a balance of evidence the Veteran's lung disability, including COPD and emphysema status post bilateral lung transplant, had its onset during service. 2. The Veteran's osteoporosis is caused by or is otherwise related to his lung disability. 3. The Veteran's neuropathy of the right lower extremity is caused by or is otherwise related to his lung disability. 4. Th Veteran's neuropathy of the left lower extremity is caused by or is otherwise related to his lung disability. CONCLUSIONS OF LAW 1. With the resolution of reasonable doubt in favor of the Veteran, the criteria for service connection for a lung disability, including COPD and emphysema status post bilateral lung transplant, have been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for osteoporosis, secondary to the lung disability, have been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310. 3. The criteria for service connection for neuropathy of the right lower extremity, secondary to the lung disability, have been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310. 4. The criteria for service connection for neuropathy of the left lower extremity, secondary to the lung disability, have been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from June 1985 to June 1989. These matters come before the Board of Veterans' Appeals (Board) from a February 2017 rating decision. The Veteran testified before the Board at a hearing in July 2021. A transcript of the hearing has been associated with the claims file. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Generally, the evidence must show the existence of (1) 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. Certain chronic diseases are subject to presumptive service connection if the disease manifests to a compensable degree within one year of separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). Lung Disability The Board has reviewed the evidence of record and finds that service connection is warranted for a lung disability, including COPD and emphysema status post bilateral lung transplant. The Veteran provided testimony regarding his lung disability at the July 2021 Board hearing. In connection with repairing tile in a barracks, he testified he was exposed to floor tile adhesives, and gasoline used to clean up the excess adhesives, after which he experienced a burning sensation and tightness in his chest, along with difficulty breathing. He recalled seeing the medic, and noticed a decline in lung function thereafter. Following discharge from service, he thought any continuing decline in lung function was due to being out of shape. Service treatment records show that in February 1989, the Veteran complained of severe coughing lasting for one week. He stated that he was unable to complete a run due to being too severely out of breath to continue. He was noted as not appearing to be out of breath at rest and that his lungs sounded slightly congested. This was assessed as a sinus problem. When examined in connection with his discharge from service there were are no indications of a lung disability, including COPD and emphysema. Post service records show the Veteran was diagnosed to have COPD in 1996, which continued to worsen until the Veteran had a bilateral lung transplant in 2014. The Veteran's private physician opined that the in-service exposure and inhalation of commercial adhesive fumes and gasoline, in a confined space, over the course of several hours, more likely than not caused or contributed significantly to the Veteran's lung disability. He explained that without other factors, such as chemical exposure or the inhalation of particles such as asbestos or silica sand, COPD and emphysema most typically develop later in life. (The Veteran, who was born in 1966, would have only been 30 years old in 1996.) The physician also documented that the Veteran was tested and does not have the genetic trait for lung disease, and observed that floor tiles from barracks built during the specified timeframe contained asbestos, which if broken or damaged can lead to lung disease if inhaled. The physician went on to consider it was highly improbable that the Veteran, who was determined to be healthy and in no need of care at the time of discharge in June 1989, would develop COPD and emphysema in the span of seven years. Further, the physician opined that it is much more probable that an inhaled substance or chemical, such as gasoline fumes, floor tile adhesive, or asbestos fibers, caused or significantly contributed to the Veteran's lung disability. Moreover, the physician stated that in the process of removing and replacing damaged floor tiles, hazardous asbestos would be released into the air, and that it is well-documented that such damaged and cracked tiles would release asbestos when walked on each day. An August 2016 VA examiner expressed the opinion the Veteran's lung disability was due to the Veteran's 20 year smoking history and his family history of emphysema. On this evidence, the record is at least in equipoise on whether the Veteran's lung disability was incurred in service. The Veteran's private physician gave a compelling rationale for linking the Veteran's disability to service, while the VA examiner provided alternative reasons why that might not be so. However, the VA examiner did not account for the Veteran not having a genetic trait for his disability, and that the family members who had lung disability were, like the Veteran, exposed to known respiratory hazards in coal mines and sandblasting. Likewise, the VA examiner did not address the young age at which the Veteran first had COPD. Thus, the evidence can not be said to preponderate against the claim the disability was incurred in service, but rather, gives rise to a reasonable doubt on the matter. Resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence of record tends to reflect it is at least as likely as not that the Veteran's COPD and emphysema status post bilateral lung transplant is etiologically linked to service. Therefore, service connection is warranted. Osteoporosis and Neuropathy of the Bilateral Lower Extremities The Board has reviewed the evidence of record and finds that service connection is warranted for osteoporosis and neuropathy of the bilateral lower extremities secondary to the lung disability. During the July 2021 Board hearing, the Veteran provided testimony regarding his claims of service connection for osteoporosis and neuropathy of the bilateral lower extremities. He stated that his lung disability with bilateral lung transplant has required the use of numerous steroids and immunosuppressant medications, which have caused his osteoporosis and neuropathy of the bilateral lower extremities. In August 2016, the Veteran underwent VA examinations regarding his lung disability, osteoporosis, and neuropathy of the bilateral lower extremities. The examiner diagnosed the Veteran as having peripheral neuropathy of the bilateral lower extremities and osteoporosis with joint manifestations. The examiner also documented that the Veteran is on multiple immunosuppressant drugs due to his bilateral lung transplant. The examiner opined that that the Veteran's osteoporosis and neuropathy of the bilateral lower extremities are secondary to his lung disability and/or the treatment arising out of it. The examiner explained that these disabilities are known and common complications of taking chronic immunosuppressant drugs to avoid rejection of a lung transplant. Additionally, the Veteran's VA treatment records also document current diagnoses of osteoporosis and neuropathy of the bilateral lower extremities. (Continued on the next page) The Board finds that the probative evidence of record demonstrates that service connection is warranted for osteoporosis and neuropathy of the bilateral lower extremities, secondary to the lung disability. The opinion of the August 2016 VA examiner establishes a nexus relationship between the Veteran's lung disability and his osteoporosis and neuropathy of the bilateral lower extremities. Specifically, the examiner explained that these disabilities are known complications of taking chronic immunosuppressant drugs, as required for the Veteran's lung disability with bilateral lung transplant. Accordingly, the Board finds that the preponderance of the evidence establishes the requirements for secondary service connection for osteoporosis, neuropathy of the left lower extremity, and neuropathy of the right lower extremity. Therefore, the appeals are granted. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Page-Nelson, 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.