Citation Nr: 21071817 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 20-26 464 DATE: December 1, 2021 ORDER Service connection for chronic obstructive pulmonary disease (COPD) to include emphysema is denied. Service connection for Alzheimer's disease to include dementia is denied. FINDINGS OF FACT 1. Pulmonary disease was not shown during service or for many years thereafter, and the preponderance of evidence is against finding that the Veteran's current COPD/emphysema is related to service, to include as due to exposure to asbestos, mustard gas or gas chamber toxins. 2. Alzheimer's disease or dementia was not shown during service or for many years thereafter, and the preponderance of evidence is against finding that the Veteran's current Alzheimer's disease/dementia is related to service, to include as due to exposure to asbestos, mustard gas or gas chamber toxins. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for COPD to include emphysema have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303, 3.316 (2020). 2. The criteria for establishing service connection for Alzheimer's disease to include dementia have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303, 3.316 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1961 to March 1964. This matter comes before the Board of Veterans' Appeals (Board) from an August 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran's stepdaughter, who is his custodian, testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board remanded these matters in April 2021 for further development. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a) (2); 38 C.F.R. § 20.902(c). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38U.S.C. §§1110, 1131; 38C.F.R. §3.303. Generally, in order to prove service connection, there must be 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. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Exposure to certain specified vesicant agents, such as mustard gas, during active military service, together with the subsequent development of certain diseases, is sufficient to establish service connection in certain circumstances, which, in relevant part, include full-body exposure to nitrogen or sulfur mustard or Lewisite during active military service together with the subsequent development of a chronic form of laryngitis, bronchitis, emphysema, asthma, or chronic obstructive pulmonary disease. 38 C.F.R. § 3.316 (a). Service connection will not be established under this section if the claimed condition is due to the claimant's own willful misconduct, or if there is affirmative evidence that establishes a nonservice-related supervening condition or event as the cause of the claimed condition. 38 C.F.R. § 3.316 (b). For claims involving exposure to mustard gas, a veteran must provide evidence of in-service exposure and a diagnosis of current disability, but is relieved of the burden of providing medical evidence of a nexus between the current disability and his in-service exposure. Rather, that nexus is presumed if the other conditions are met, subject to the regulatory exceptions in 38 C.F.R. § 3.316(b). See Pearlman v. West, 11 Vet. App. 443, 446 (1998). Notwithstanding the regulations governing presumptive service connection, a Veteran may also establish service connection with proof of actual direct causation. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 1. Service connection for COPD to include emphysema The Veteran seeks service connection for COPD and emphysema, which he asserts is due to exposure to asbestos and mustard gas during service. Based on the stepdaughter's January 2021 Board testimony, it appears the Veteran was referring to exposure during the gas chamber exercise during basic training. The stepdaughter testified that, due to his current disabilities, the Veteran is unable to provide testimony regarding his military operations but that he shared that while serving in Germany he drove in an open jeep and was tested in a room where they stood single file and wore masks, but he did not provide details; that she vaguely remembered these stories; and that he did not explicitly state that he was exposed to any chemicals, such as asbestos or mustard gas. She testified that she has not been told by any clinician that the Veteran's current conditions are related to service. The medical evidence shows a current pulmonary condition, diagnosed as COPD, emphysema and bronchiolitis, as shown on a May 2021 VA examination report. Thus, the question becomes whether this disability was incurred in or is otherwise related to service. Service personnel records show the Veteran served during a period of peacetime, did not serve in Vietnam, did not engage in combat, and his military occupational specialty was heavy weapons infantryman. While COPD and chronic emphysema are listed as presumptive diseases based on full body exposure to nitrogen or sulfur mustard or Lewisite during active service, the record does not establish that the Veteran underwent full-body exposure to mustard gas or lewisite during service in order to qualify for presumptive service connection under 38 C.F.R. § 3.316. In this regard, the Veteran did not respond to VA's March 2020 letter to provide more information to corroborate his alleged exposure to mustard gas or lewisite, or VA's April 2020 letter to corroborate his exposure to asbestos. Further, VA's March 2020 inquiry to the Department of Defense database of known mustard gas testing participants did not confirm the Veteran as an individual associated with the Registry. While the Veteran is competent to report what he has experienced, his reports are not reliable due to his limited recollection and inconsistency with other evidence in the record, which does not evidence in-service exposure or a chronic disability or persistent symptomatology during service or for decades thereafter. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board is entitled to discount the weight, credibility, and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Accordingly, presumptive service connection based on chronic effects of exposure to include mustard gas and lewisite, is not warranted. The Board finds that service connection is also not warranted on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). While service treatment records show that the Veteran was diagnosed with an upper respiratory infection in August 1961, they do not document any other complaints, treatment or findings related to the pulmonary or respiratory system. A January 1964 chest x-ray was normal and indicated there was no pertinent history. Further, the Veteran's February 1964 discharge examination indicated the lungs and chest were normal, and the Veteran denied chronic or frequent colds, shortness of breath, pain or pressure in chest and chronic cough on the accompanying February 1964 report of medical history. Post-service medical evidence does not reflect treatment or findings of a pulmonary disability until decades after service, notably a diagnosis of pulmonary emphysema in July 2014 and COPD in March 2017, as noted in private treatment records. As the competent evidence of record does not establish a pulmonary disability during service or for decades thereafter, competent and credible evidence that links the claimed condition to service is needed to establish service connection. However, in this case, the probative evidence is against the claim. A May 2021 VA examiner provided a negative nexus opinion, in which he opined that the diagnosed COPD, emphysema and bronchiolitis were less likely than not related to service, to include the upper respiratory infection during service and the alleged gas chamber exercise and asbestos exposure. He reasoned that the evidence does not support in-service gas chamber exercises or alleged asbestos exposure; that the diagnosed COPD to include emphysema is more likely consistent with many years of smoking cigarettes; and the diagnosed bronchiolitis was a new diagnostic finding and caused by a viral syndrome. He stated that the Veteran and his daughter were poor historians, noting that the Veteran has advancing Alzheimer's disease and the daughter recalls minimal details, including when the Veteran was diagnosed with COPD and emphysema and whether the Veteran was ever exposed to asbestos or trained in a gas chamber. He also noted that the daughter recalled that the Veteran related he began smoking during service due to high demands, stress levels and peer pressure and had smoked since service prior to quitting in the early 1980's. In a September 2021 addendum opinion, the same VA examiner opined that the Veteran's current respiratory disability was less likely than not related to the August 1961 in-service treatment for an upper respiratory infection, reasoning that the upper respiratory infection was acute; there was no record of a chronic condition or persistent symptoms; upper respiratory infections usually resolve within one to two weeks; there is no other supporting evidence in the record; and that his opinion remains unchanged. The Board finds that combined May 2021 and September 2021 VA opinions highly probative and entitled to significant weight. The opinions were based on examination of the Veteran, a full review of the claims file including the objective medical evidence and reported medical history, and supported by an articulated rationale for the conclusions reached that is consistent with the evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Further, the examiner provided an alternative etiology for the Veteran's COPD and emphysema, namely cigarette smoking. In this regard, the Board notes that medical treatment records show the Veteran reported he continuously smoked 1 to 2 packs of cigarettes per day off and on for 40-plus years from the time of service to the present. See, e.g., VA and private treatment records in January 2000, March 2008, June 2017 and August 2020. Thus, the Board finds the VA opinions are probative and persuasive. There is no medical opinion to the contrary. Although the Veteran's daughter asserted that the Veteran's smoking was caused by service, in that he began smoking during service and was given multiple packs of cigarettes daily throughout his tour, as noted in her July 2017 statement and the May 2021 VA examination report, service connection for the cause of the Veteran's death as due to tobacco use or nicotine dependence during service is not available as a matter of law. Kane v. Principi, 17 Vet. App. 97 (2003); 38 C.F.R. § 3.300. The Board acknowledges the medical literature submitted by the Veteran in July 2017, including articles and internet information that discuss potential associations between military exposure and chronic respiratory conditions, such as COPD. However, these articles and information do not specifically discuss the Veteran and his medical history or relate his individual case to his service. Sacks v. West, 11 Vet. App. 314, 317 (1998). Accordingly, they have minimal probative weight as to nexus and are significantly less probative than the VA opinions that do not link the Veteran's condition to service. While the Veteran believes his current COPD and emphysema are related to service, he has not been shown to have the specialized training sufficient to render such an opinion, as the diagnosis and etiology of pulmonary conditions are matters not capable of lay observation and require medical expertise to determine. Thus, his opinion as to the onset or etiology of his currently COPD and emphysema is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d at 1376-77 (Fed. Cir. 2007) (noting lay person's general competence to testify as to symptoms but not to medical diagnosis). The Board finds the medical evidence, to include the VA examiner's opinion, to be significantly more probative than the lay assertions. In sum, the preponderance of evidence is against the claim for service connection for COPD to include emphysema and the appeal is denied. 2. Service connection for Alzheimer's disease to include dementia The Veteran seeks service connection for Alzheimer's disease and dementia, which he contends is related to his military service, to include exposures during service. See January 2021 Board testimony. The medical evidence shows the Veteran is diagnosed with Alzheimer's disease to include dementia, as noted on a June 2014 letter from a private clinician submitted by the Veteran and the May 2021 VA examination report. Thus, the question for the Board is whether the Veteran's Alzheimer's disease to include dementia was incurred in or is otherwise related to service. The Veteran's service treatment records do not document any complaints, treatment or diagnosis pertaining to memory problems. Further, the Veteran's neurologic system was indicated as normal on his February 1964 discharge examination, and he denied loss of memory or amnesia in the accompanying report of medical history. Post-medical evidence shows the Veteran was first diagnosed with memory loss and Alzheimer's disease in approximately 2013, which is decades after service. As the competent evidence of record does not establish memory loss in service or for many years thereafter, competent evidence linking the current disability to service is needed to substantiate the claim. On this question, the Board finds the preponderance of competent and probative evidence is against the claim. A May 2021 VA examiner provided a negative nexus opinion, in which he opined that the Alzheimer's disease to include dementia was less likely than not related to service, to include gas chamber exposure commonly occurring during basic training or alleges asbestos exposure. The examiner reasoned that service treatment records do not document evidence of the disease and the evidence did not support gas chamber exercises and asbestos exposure. He also suggested an alternative etiology by citing a new study that indicates that older adults diagnosed with COPD may be at a higher risk for mild cognitive impairment, which can eventually lead to Alzheimer's disease. In a September 2021 addendum opinion, the examiner stated that he reviewed the service treatment record in August 1961, and his medical opinion remained unchanged. The Board finds that combined May 2021 and September 2021 VA opinions highly probative and entitled to significant weight. The opinions were based on a thorough review of the evidence of record, including the service treatment records, post-service treatment records and physical examination, and the conclusion is consistent with the evidence of record. See Nieves-Rodriguez, 22 Vet. App. at 302-04. There is no medical opinion to the contrary. The Board acknowledges the medical literature submitted by the Veteran in July 2017. These includes articles and internet information that discuss military risk factors for cognitive decline, dementia and Alzheimer's disease, including chemical exposure, combat exposure and life-style risks such as tobacco use. However, these studies and information do not specifically discuss the Veteran and his medical history or relate his individual case to service. See Sacks, 11 Vet. App. at 317. Accordingly, these submissions have minimal probative weight as to the issue of nexus and are significantly less probative than the VA opinions. While the Veteran believes his current Alzheimer's disease to include dementia is related to service and exposure to asbestos or gas chamber toxins during service, he has not been shown to have the specialized training sufficient to render such an opinion. See Jandreau, 492 F.3d at 1376-77. The diagnosis and etiology of Alzheimer's disease is a matter not capable of lay observation and requires medical expertise to determine. Thus, his opinion as to the onset or etiology of the Veteran's current disease is not competent medical evidence. The Board finds the medical evidence, to include the VA examiner's opinion, to be significantly more probative than the lay assertions. In sum, the preponderance of evidence is against the claim for service connection for Alzheimer's disease to include dementia, as due to exposure to asbestos, mustard gas or gas chamber toxins, and the appeal is denied. In reaching the above conclusions on both issues, the Board considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims, the doctrine does not apply. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. C. Birder 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.