Citation Nr: 21070827 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 190221-5393 DATE: November 26, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. FINDINGS OF FACT 1. The Veteran has a diagnosis of COPD. 2. The Veteran's COPD is not shown to be etiologically related to his service, to include as due to exposure to asbestos or jet fuel fumes. CONCLUSION OF LAW The criteria for entitlement to service connection for COPD are not met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.300, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Navy from June 1977 to June 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal form a March 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for COPD. In May 2018, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) opt-in election form. See 38 C.F.R. § 3.2400(c)(1). At that time, he requested a higher-level review of his claim. In September 2018 the RO conducted the higher-level review and continued to deny the claim for service connection. In February 2019, the Veteran filed a Decision Review Request: Board Appeal (Notice of Disagreement) and requested direct review from the Board. In a September 2019 decision, the Board denied the Veteran's claim. The Veteran appealed the issue to the Court of Appeals for Veterans Claims (Court). In a June 2020 order, the Court vacated the Board's September 2019 decision and adopted the parties' Joint Motion for Remand (JMR) for reconsideration of the Veteran's claim. The June 2020 JMR indicated that the Board erred in its September 2019 decision for two reasons: (1) the Board failed to address the Veteran's statements that he wanted to see a lung specialist or pulmonary doctor, as his VA examination had been conducted by a nurse practitioner; and (2) the Veteran's contentions that the VA examiners failed to provide sufficient rationale regarding the relationship between his COPD and in-service exposure to asbestos and jet fuels. The matter was returned to the Board in January 2021, at which time it was remanded to obtain a new VA medical opinion to cure the above deficiencies. In February 2021, a VA medical opinion was provided by a physician who was Board Certified in Internal Medicine and Pulmonary Disease. This VA examiner disputed the diagnosis of COPD, finding the Veteran did not have this condition, and disputed the exposure to asbestos. The Board remanded the matter again in July 2021 with instructions to the examiner that the diagnosis of COPD was conceded and requesting that exposure to asbestos similarly be conceded for the purpose of the medical opinion (although exposure had not been conceded by the RO, only "probable exposure"). An addendum medical opinion was provided in September 2021 and the matter has returned to the Board for adjudication. The Board finds there has been substantial compliance with the prior remand directive. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for chronic obstructive pulmonary disease (COPD). The Veteran contends his COPD is etiologically related to his service, specifically as due to his exposure to asbestos and toxic jet fuel fumes. 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. To substantiate a claim of service connection, there must be evidence of: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during active service or is at least as likely as not related to an in-service injury, event, or disease, to include exposure to asbestos or jet fuel fumes. The Board concludes that, while the Veteran has a current diagnosis of COPD, the preponderance of the evidence is against a finding that it began during his active service or is related to a disease, injury, or event in service, to include exposure to asbestos and jet fuel fumes. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. There is no competent evidence that the Veteran's COPD had its onset during service or for many decades after separation from service in June 1981. In-service treatment records show he was seen for chest pain in February 1978, and was told to return if needed, which he did not do. In May 1978, he presented with scapular pain associated with lifting weights, with no pulmonary symptoms. In December 1978, he presented with a head cold with associated chest congestion and chest pain. The examination was consistent with a viral syndrome and no other action was taken. In July 1980, he presented with brief (2-3 minutes) episodes of sharp left chest pain, shortness of breath, and anxiety related to relationship concerns. This was diagnosed as hyperventilation syndrome and no other treatment was indicated. A chest x-ray taken in connection with the July 1980 medical complaint was normal. The Veteran was diagnosed with COPD in or around 2016. Pursuant to the JMR (and per the Veteran's request), a VA pulmonary specialist evaluated the Veteran's case. In the September 2021 medical opinion, the VA examiner opined it was less likely than not (less than 50 percent probability) that the Veteran's COPD was related to service, to include being incurred in or caused by the claimed in-service exposure to asbestos and/or jet fuel fumes. Although this provider did not perform additional pulmonary function testing or other tests, which the Veteran purported to request, the Board finds any such testing is unnecessary given the favorable finding of a diagnosis of COPD. The VA examiner evaluated the Veteran's contentions regarding exposure to asbestos and exposure to jet fuel in light of his review of the Veteran's medical records and relevant medical literature. The September 2021 VA examiner stated that there was no evidence of an asbestos-related disability. He noted that asbestos-related disease would cause a restrictive process in the lungs, rather than an obstructive process as seen in COPD. He noted that the Veteran had normal chest x-rays in April 2002, May 2010, May 2013, and November 2016. The Veteran was hospitalized in September 2013 after complaining of chest pain and shortness of breath, and was diagnosed with cardiac enlargement, atrial fibrillation, pericardial and plural fluid accumulation, and suspected congestive heart failure. Per the VA examiner, these diagnoses are not related to any primary pulmonary disease, specifically to COPD or asbestos-related issues. The examiner noted that a September 2013 CT scan, undertaken in connection with the Veteran's hospitalization, included pulmonary angiography and made no mention of anatomic emphysema, airway changes of bronchitis, or interstitial fibrosisfindings which would have been consistent with asbestosis or asbestos plaque. The examiner further noted that the typical latency period for asbestos-related disease is about 20 years. The Veteran was diagnosed with COPD over 30 years after leaving military service, and, in any event, there is still no evidence of an asbestos-related disability. With regard to jet fuel exposure, the examiner stated that such exposure would cause acute neurotoxicity and acute airway irritation, which was not seen in the Veteran's medical records. It would not cause COPD or a related chronic disease. The VA examiner thus concluded there was "no plausible relationship of events in service to subsequent pulmonary medical issues." The Board finds the VA examiner's opinion to be highly probative, as it is based on an accurate medical history and provides an explanation containing clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges the Veteran believes his COPD is related to service. However, the Board finds that although the Veteran is competent to report on his symptoms, he is not competent to provide an opinion as to the diagnosis or etiology of his COPD or other respiratory disability because such a question is not answerable by the application of knowledge within the realm of a lay person. See Layno v. Brown, 6 Vet. App. at 469-70; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has described a history of chest pain and shortness of breath, but these symptoms are non-specific, indicative of innumerable differential diagnoses, and any potential attribution is further complicated by the Veteran's comorbidities including his history of cardiac conditions. Accordingly, the Veteran's opinion as to the diagnosis or etiology of his COPD is not competent medical evidence. The Board finds the opinion of the September 2021 VA examiner to be significantly more probative than the Veteran's lay assertions. In summary, while it has been established that the Veteran has a current diagnosis of COPD and he is presumed to have been exposed to asbestos and jet fuel fumes during service, the preponderance of the evidence is against a finding that the COPD is etiologically related to his service or is due to or the result of a disease, injury or event (including exposure to asbestos or jet fuel fumes) therein. Accordingly, the benefit of the doubt doctrine does not apply and service connection is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Medley, 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.