Citation Nr: 21070710 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 16-10 672 DATE: November 24, 2021 ORDER Service connection for chronic obstructive pulmonary disease (COPD) and emphysema is granted. Service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. The Veteran's COPD and emphysema were incurred as a result of service. 2. The Veteran's direct cause of death in April 2016 was COPD. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD and emphysema are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1953 to April 1957. He died in April 2016. The Appellant is the Veteran's surviving spouse and has been granted substitution on the claim of service connection for a respiratory disability that was pending at the time of his death. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA). The Board remanded these two issues in December 2018 for additional development, and issued a decision denying both issues in December 2020. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In a July 2021 Order, pursuant to a Joint Motion for Remand by the parties, the Court vacated and remanded the Board's decision because the requested full time of 90 days was not allowed before the prior decision was issued. It appears that the faxed request, dated and received two days prior to the Board decision, had not yet been associated with the claims file. After the Court remand, the Veteran's attorney submitted additional evidence in November 2021, which supports a grant. 1. Service connection for COPD and emphysema Prior to his death, the Veteran filed a service connection claim for a respiratory disability, claimed as emphysema. He asserted that he had a current respiratory disability which was incurred in or due to an in-service respiratory disease. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. Generally, service connection requires three elements: (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). In adjudicating such claims, reasonable doubt that exists because of an approximate balance of positive and negative evidence concerning any point will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran's complete service treatment records are not available and are presumed to have been destroyed in a 1973 fire at the National Personnel Records Center. In such cases, VA has a heightened duty to assist and explain its findings and to consider carefully the benefit of the doubt rule. VA located some service treatment records for the Veteran via alternative records sources. VA attempted to obtain additional service records from the Fort Dix base hospital, but in June 2020, service sources stated that no additional treatment records were available. The only available service records reflect two episodes of hospitalization for respiratory illness during service from April 1953 to May 1953. In April 1953, the Veteran was hospitalized for pneumonia at the base of the right lung, type and cause undetermined, which was treated with antibiotics and considered cured after 8 days. He returned to full duty and, 10 days later, he was hospitalized for an influenza-like syndrome, which was again treated with antibiotics and considered cured after 11 days. He again returned to full duty. No other records were found. After service, the Veteran was diagnosed with COPD in 2001, which was based initially on reports of shortness of breath or difficulty breathing (dyspnea) with exertion. He was subsequently diagnosed with pulmonary emphysema based in part on a March 2012 CT scan, and he required constant use of oxygen. The Veteran reported an extensive smoking history, although the timing is unclear. At various points he was noted to have smoked for 40 years, to have smoked 1.5 packs per day for 20 years, and to have a 30-pack year history. At some points, the Veteran reported that he quit smoking in the 1990s, and at some points he reported quitting earlier, such as in January and December 2015 when he reported quitting approximately 40 years ago (or around 1975). In August 2012, the Veteran reported noticing shortness of breath and fatigue with strenuous activities during service, but that he did not complain because his duties did not involve physical strength. See, e.g., August 2012 letter from Dr. O (private provider), January 2013 private treatment record, October 2013 VA examination and opinion, January 2015 and December 2015 VA treatment records, October 2021 private opinion. As there are no subsequent records of treatment or evaluations during service, to include around the time of his separation in 1957, any symptoms after his two episodes of inpatient treatment in 1953 shortly after entry are unclear. The Veteran is competent to report noticing shortness of breath and fatigue with exertion since 1953, and the reason why he did not seek treatment after his hospitalizations in service, although the next available records of respiratory treatment were in 2001. In an August 2012 statement, Dr. O noted the Veteran's current diagnoses, his history of pneumonia and influenza in service during periods of cold weather, and that the Veteran reported experiencing shortness of breath since those episodes. Dr. O stated that the Veteran denied any smoking history or other disease which may explain his current respiratory disorders and requested VA to evaluate the Veteran for possible service connection for his respiratory disability. Dr. O. did not provide a nexus or etiology opinion, and any suggested opinion is not probative because it is based on an inaccurate history, in that the Veteran did have a smoking history. An October 2013 VA examiner reviewed the claims file and noted the Veteran's current diagnoses, respiratory illnesses during service, history of smoking, and treatment for breathing difficulties since 2001. The examiner opined that it was less likely than not the current disorders were due or related to the treatment in service for pneumonia or influenza. The examiner explained that the main cause of emphysema or COPD is usually long-term, regular tobacco smoking, although other potential causes include exposure to air pollution, factory fumes, or coal and silica dust, and rarely an inherited deficiency affecting the elastic tissue in the lungs. There was no evidence in medical literature linking pneumonia or influenza to the development of emphysema. However, this examiner did not address the significance of exposures through the Veteran's military duties as an auto mechanic, which were noted and discussed in a subsequent positive opinion. In an October 2021 private opinion, Dr. DP reviewed the claims file and noted the Veteran's relevant history and prior opinions as summarized above, including his smoking history, along with other relevant evidence from the claims file and medical literature. This highly probative opinion supports the Appellant's claim. In addition to the Veteran's treatment for respiratory illnesses during service in 1953, Dr. DP noted that his military occupational specialty was an auto mechanic, as shown by his DD Form 214, and it was unknown if wore respiratory protection. She stated that it was more likely than not that the Veteran inhaled significant amounts of hazardous fumes, gases, and vapors through those duties; and that his post-service occupation was as a merchandiser, or no such post-service exposures. Dr. DP gave a detailed explanation of the nature and potential causes of COPD and emphysema, with citations to relevant medical literature. Similar to the 2013 VA examiner, Dr. DP summarized that the main cause of COPD in the U.S. is cigarette smoking, but other causes include environmental or occupational exposures to dust, gases, fumes, and vapors, plus genetic factors which is far less common. Dr. DP noted that only some chronic smokers develop clinically apparent COPD, although many may develop reduced lung function. Dr. DP further noted that emphysema is a type of COPD, and as with other types of COPD, its cause is long-term exposure to airborne irritants including tobacco smoke, air pollution, chemical fumes, and dust, or rarely a genetic deficiency. Exposure to chemical fumes, vapors, and dusts in the workplace, including from burning fuels, can irritate and inflame the lungs, so respiratory protective equipment is important. After summarizing the Veteran's history and medical articles as recent as 2021, Dr. DP opined that it is at least as likely as not that he developed progressive lung impairment that led to emphysema and eventually severe COPD, which led to his death, due to in-service exposure to vapors, fumes, and gases from fuels, solvents, and engine exhaust smoke through his duties as an auto mechanic for four years. Dr. DP noted that the Veteran had two consecutive pulmonary or respiratory events in the first months of service, and her clinical experience and medical literature show that new exposure to inhaled irritants may trigger respiratory compromise and facilitate subsequent infections. It is common that people newly exposed to inhaled irritants develop a certain degree of pneumonitis or inflammation of lung tissue proportional to the type of exposure, variety of inhaled irritants, and length of exposure during the workday. Thus, Dr. DP stated that the Veteran may have had chemical or irritative pneumonitis instead of bacterial pneumonia during service, which improved after two weeks of penicillin in addition to rest, or no work exposure, and then when he returned to work he developed another respiratory infection. Because the Veteran reported having chronic shortness of breath during service in his treatment in later years, he may have had chronic pulmonary impairment that was not reported or assessed at that time. Dr. DP noted that in the 1950s the knowledge and diagnostic means concerning respiratory problems were "more precarious" than now, especially for work-related exposure to vapors, etc. Overall, Dr. DP considered the Veteran's smoking history and still opined that it was more likely than not that his exposure to fumes and irritants during service resulted in his emphysema and severe COPD, which led to his death in April 2016. She emphasized that current medical literature repeatedly notes that lung damage caused by chronic exposure to chemical irritants, vapors, fumes, gases, and dust occurs independently of smoking history. This opinion considers more of the Veteran's relevant history during and after service and contains detailed analysis. Although there is positive and negative evidence as to the etiology of the Veteran's disorders prior to his death, the evidence is at least in relative equipoise. As noted above, given the missing service records through no fault of the Veteran or Appellant, there is a heightened duty to consider the benefit of the doubt. Thus, reasonable doubt is resolved in the Appellant's favor, and the appeal is granted. 2. Service connection for the cause of the Veteran's death To warrant service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Reasonable doubt is resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran's certificate of death lists COPD as the immediate cause of death in April 2016, which is also supported by his terminal treatment records. Because service connection for COPD is granted in this decision, service connection for the Veteran's cause of death is also warranted. The appeal is granted. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wheatley 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.