Citation Nr: 21071728 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 10-44 036 DATE: December 1, 2021 ORDER Entitlement to service connection for a respiratory condition, to include chronic obstructive pulmonary disease (COPD) and a condition manifested by frequent colds with coughing and dizziness, to include as due to exposure from jet fuel exposure is denied. REMANDED Entitlement to service connection for hiatal hernia to include as due to esophageal stricture and/or migraine headaches is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's respiratory condition is related to the Veteran's active-duty service to include exposure to jet fuel exposure. CONCLUSION OF LAW The criteria for service connection for a respiratory disability, have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active-duty service from March 1984 to March 1987. This matter is on appeal from an August 2012 rating decision. The Board remanded this appeal in February 2018, January 2020, and April 2021 for additional development. Service Connection Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). Certain chronic diseases, including arthritis, may be service connected if manifested to a degree of 10 percent disabling or more within one year after separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In relevant part, 38 U.S.C. § 1154 (a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107 (b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Respiratory condition The Veteran asserts his respiratory condition is related to his active-duty service. Review of the medical treatment record shows multiple complaints and treatment for coughing and congestion. The treating providers of record have provided several assessments or diagnoses to include bronchitis, rhinitis, cough, and COPD. In March 2019 and February 2020 VA examinations the examiner diagnosed the Veteran with COPD. As such, the Board finds the Veteran with a current disability. Review of the Veteran's service treatment records (STRs) do not show any specific diagnosis for a respiratory condition. The Veteran's STRs noted that the Veteran was a smoker since 1973 at one pack per day. At the Veteran's February 1987 separation examination, the Veteran denied shortness of breath, cough, or cold; the treating provider did not diagnosis any respiratory condition. The Veteran's position in service was noted to be a petroleum specialist. Review of the Veteran's medical treatment record shows an extensive history of smoking for more than 20 years. In January 2007 and August 2007, the Veteran reported congestion with no cough; the treating provider assessed the Veteran with allergic rhinitis and congestion. In February 2010 the Veteran was assessed with bronchitis after reported complaints of congestion and cough. In March 2010 the Veteran reported continued complaints of cough and that he continued to smoke. The treating provider assessed the Veteran with COPD and continued tobacco use. In August 2010 the Veteran asserted a claim for service connection for a respiratory condition and that it was due to jet fuel exposure. In February 2012, a treating provider noted that the Veteran's chronic cough may be related to gastrointestinal issues but also that smoking may play a role as well. The Veteran in a following February 2012 response asserted that his cough was not from smoking and that his cough "was from COPD, I got it from hazardous exposure in the military 1984 to 1987." The treating provider assessed the Veteran with chronic bronchitis. The Veteran was afforded an April 2012 VA examination. The Veteran reported the onset of his condition to be 1985 where he described having symptoms of shortness of breath and cough; experienced a lot of chest colds; and was unable to run in the military. The examiner did not find the Veteran's respiratory condition related to service and opined that there was "no evidence of causal relation between Jet Fuel exposure and COPD." The Veteran in May 2013 submitted several documents and printouts to include safety data sheets on jet fuel with warnings on exposure; abstracts; and studies on the health effects of jet fuel exposure. The Veteran was afforded a March 2015 VA examination. The Veteran reported the onset of his condition in 2008. The examiner did not find the Veteran's claimed respiratory condition to be related to service and opined there was a lack of medical evidence to support a causal relationship between exposure to jet fuel and COPD. However, the examiner's opinion did not discuss the submitted May 2013 articles and documents or explain if they were reviewed in creating the opinion. The Veteran was afforded a May 2017 VA examination. The examiner did not diagnose the Veteran with a respiratory condition because the Veteran demonstrated poor effort during testing and therefore only had "unreliable" results that could not support a pathology rendering a COPD diagnosis. However, the examiner did not reconcile these findings with the prior diagnoses made in the previous VA examinations and medical treatment record. The Veteran was afforded a March 2019 VA examination. The Veteran reported the onset of his condition 1984 where he was "smelling fuel everyday" due to his duties as a refueler. The Veteran stated that it became hard to run in physical training or soccer and experienced symptoms of shortness of breath, chest tightness and vomiting. The Veteran also reported smoking 2 to 3 packs a day for more than 20 years. The examiner opined there were no findings in the medical record to indicate issues in service or in the following years to show a diagnosis of a pulmonary condition. The examiner stated that COPD was due to "chronic changes in lung parenchyma from exposure to irritants over prolonged periods." The examiner did note that exposure to jet fuel could serve as an irritant but then also added that the Veteran's "significant smoking history is most likely cause for current diagnosis, or very likely to have significantly compounded condition." It is unclear whether the examiner determined which irritant was the cause of the Veteran's respiratory condition; therefore, the Board finds the opinion inadequate given its inconclusive and speculative findings. The Veteran was afforded a February 2020 VA examination. The Veteran reported the onset of his conditions in 1985 where he pumped JP4 fuel and noticed symptoms of dizziness and vomiting during 2 mile runs and unable to make long runs. The examiner found the Veteran's diagnosed COPD to be less likely than not related to his active-duty service. The examiner noted the Veteran's long history as a smoker "non-compliant with treatment" to include growing up in a household with smoking and current smoking 2 packs a day for at least 28 years. The examiner stated that cigarette smoke was a main cause of COPD and could be greatly influenced by living in a household of smokers. The examiner indicated that while petroleum fume is a risk factor "specifically for non-smokers"; the examiner did not find COPD to be aggravated by fumes as the Veteran did not have a diagnosis of COPD during service. As such, the examiner found that based on the Veteran's personal and environmental exposure to smoke, the exposure to fumes was not the cause of COPD. In a May 2021 addendum opinion, the examiner indicated all evidence of record to include the submitted May 2013 documents and literature by the Veteran. The examiner noted that while there reported symptoms in the Veteran's STRs, such findings were attributable to acute illness that resolved and did not become chronic. The examiner next noted that the Veteran's COPD was diagnosed in 2010 and cited medical research show a strong causal link between COPD and smoking tobacco, indicating that smoking was the most common cause of diseases worldwide. The examiner noted the Veteran's long history of smoking and indicated the Veteran continued to smoke 2 to 3 packs a day despite advice to quit. The examiner noted that the submitted documentation and literature by the Veteran did discuss exposures to types of jet fuel but in a "chronic setting" and did not find evidence that the Veteran had such prolonged or chronic exposure to specific jet fuel "with simultaneous inhalation exposure" during his total 3 years of service; in addition the examiner also indicated the Veteran did not submit or cite any credible medical research to support the safety data sheets submitted as part of his claim. As such, the examiner reiterated the most common cause of COPD was from smoking tobacco. The Board finds that the May 2013 articles submitted by the Veteran in support of his claim are insufficient to establish the required medical nexus between his respiratory condition to his active-duty service. Medical treatise evidence can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. § 3.159 (a)(1). However, treatise evidence must not simply provide generic statements that are not relevant to the veteran's claim. Wallin v. West, 11 Vet. App. 509, 514 (1998). Instead, the treatise evidence, "standing alone," must discuss generic relationships with such a degree of certainty that, under the facts of a specific case, there is at least plausible causality based upon objective facts, not an unsubstantiated lay medical opinion. Sacks v. West, 11 Vet. App. 314, 317 (1998). The Board finds that the articles submitted by the Veteran has little probative weight because they do not specifically discuss a relationship between the Veteran's respiratory condition to the Veteran's active-duty service with a degree of certainty. See id. The Board also finds that the generalized article information is outweighed by the February 2020 and May 2021 VA medical opinions, which was rendered by a medical professional who reviewed the Veteran's complete claims file, reflected on the specific facts of the Veteran's case, considered pertinent medical research, and furnished a thorough rationale for their conclusions. See Nieves-Rodriguez, 22 Vet. App. 295. As the February 2020 and May 2021 VA examiner provided a detailed review and examination of the appellant's claims file, made repeated references to pertinent past records to include the appellant's STRs, and statements consistent with the evidence of record, the Board finds that the February 2020 and May 2021 VA examination report and medical records documenting the nature and extent of the Veteran's respiratory condition, to be the most probative evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board acknowledges the Veteran's statements and assertions that his respiratory condition is related to his military service. Certainly, he is competent to describe experiencing symptoms. To the extent that the Veteran contends that a medical relationship exists between his claimed current disability and service the Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) Nevertheless, a lay person, the Veteran does not have the training or expertise to render a competent opinion which is more probative than the VA examiner's opinion on this issue, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Here, the VA examiner considered the Veteran's statements and reports of symptoms. The examiner still found that it was unlikely that his reported in-service symptoms were related to any current disability. The Board finds that the Veteran's opinion is outweighed by the competent opinion of the VA examiner. See id. ; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). After review of the record, the Board finds the competent evidence of record is against a finding of service connection for the Veteran's respiratory condition. While the Veteran's STRs show reported symptoms of cough or respiratory symptoms, the Veteran was not diagnosed with a chronic respiratory condition. Review of the medical treatment record shows the earliest competent documentation relating to the Veteran's respiratory condition was in 2007, years after the Veteran's separation from service. The February 2020 and May 2021 VA examiner considered the Veteran's report of symptoms during intervening years but provided reasoned analysis of the case to support their opinion that the Veteran's current respiratory condition was not related to or caused by the Veteran's active-duty service to include from jet fuel exposure. The Veteran has not submitted any other opinions to be weighed against the VA examiner's opinion. As such, the Board finds that the weight of the competent and probative evidence is against a finding of service connection for the Veteran's respiratory condition. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND The Board notes that review of the Veteran's STRs show that in the February 1984 enlistment examination, the report documents a "2 years old hernia" treated in surgery; however, no detail is made on the type of hernia or when this procedure was performed. The Board notes that at the February 1987 separation examination, the Veteran denied having a hernia but later reported a "hernia" when asked if he had undergone surgery without providing further detail. The Veteran has asserted other theories on the cause of his hiatal hernia to include as secondary to his service-connected esophageal stricture and gastritis and taking medication for his service-connected migraines. In the January 2020 Board remand, the Board requested an opinion on the nature and etiology of the Veteran's hiatal hernia to also include an opinion on whether the Veteran's claimed hiatal hernia preexisted his active-duty service. In a February 2020 VA examination, the examiner opined the Veteran's hiatal hernia did not preexist the Veteran's active-duty service. In a May 2021 addendum opinion, the examiner described the causes for hiatal hernia and did not find the Veteran's reported symptoms in the STRs to indicate hiatal hernia. However, the May 2021 examiner opined the Veteran's claimed condition "which clearly and unmistakably existed prior to service" was not aggravated by service; the examiner did not explain this finding or reconcile with the conflicting finding in the February 2020 VA examination that the Veteran's hiatal hernia did not preexist service. The Board also notes that neither February 2020 or May 2021 opinion addressed the secondary theories raised by the Veteran in relation to his service-connected esophageal stricture and gastritis and headaches. As such, the Board finds the opinions inadequate, and remand warranted for clarification. As the outcome of the remanded issues could have a significant impact on the Veteran's claim of entitlement for TDIU and SMC, these issues are inextricably intertwined with the remanded claim and are also remanded. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records. 2. Obtain a VA medical opinion from an appropriate examiner. Obtain and associate with the claims file all updated and outstanding treatment records. The examiner is asked to address: (a.) Is there is clear and unmistakable (obvious, manifest, or undebatable) evidence that any diagnosed acquired hiatal hernia pre-existed the Veteran's active-duty service? The examiner should address the February 1984 enlistment examination notations of hernia and reconcile the conflicting findings made in the February 2020 and May 2021 VA examination and opinions. (b.) If it is determined that the Veteran's claimed hiatal hernia clearly and unmistakably pre-existed service, is there clear and unmistakable (obvious, manifest, or undebatable) evidence that the preexisting hiatal hernia was not aggravated beyond the natural progression of the condition? The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. (c.) If the examiner does not find that the Veteran's hiatal hernia clearly and unmistakably preexist service, is it as likely as likely as not (50 percent probability or greater) the Veteran's hiatal hernia had its onset during, was caused by, or is otherwise related to active service? (d.) Is it at least as likely as not (50 percent probability or more) that the Veteran's hiatal hernia is due to the Veteran's esophageal stricture with gastritis? (e.) Is it at least as likely as not (50 percent probability or more) that the Veteran's hiatal hernia is aggravated by the Veteran's esophageal stricture with gastritis? (f.) Is it at least as likely as not (50 percent probability or more) that the Veteran's hiatal hernia is due to the Veteran's migraines to include taking related medication to treat migraines? (g.) Is it at least as likely as not (50 percent probability or more) that the Veteran's hiatal hernia is aggravated by the Veteran's migraines to include taking related medication to treat migraines? In addressing any of the above, the VA examiner should note that "Aggravation" is defined as any worsening beyond the natural progression of the disability. The examiner should establish a baseline level of all diagnosed disabilities prior to aggravation. If the examiner is unable to establish a baseline, the examiner should provide specific explanation or rationale as to why. (h.) If the examiner cannot provide the above opinions, the examiner is advised that he/she must explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed, such as additional records and/or diagnostic studies). If the VA examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner's medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. A clearly stated rationale for any opinion offered should be provided. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.