Citation Nr: 21074965 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 14-02 633 DATE: December 16, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. REMANDED Entitlement to service connection for a skin disorder is remanded. FINDING OF FACT The preponderance of the evidence reflects that the Veteran's COPD did not have its onset in service and is not otherwise related to service, to include burn pit exposure in service. CONCLUSION OF LAW The criteria for service connection for COPD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1965 to February 1967, to include service in the Republic of Vietnam, and from November 1990 to June 1991, to include service in Southwest Asia. The Veteran also served with the Arkansas Army National Guard. The Veteran died in December 2019 and his spouse has been substituted as the appellant for purposes of prosecuting the Veteran's claims. See 38 U.S.C. § 5121A. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by a Department of Veteran Affairs (VA) Regional Office (RO). In April 2014, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In June 2015, these matters were remanded for further development. Following the requested development, in a July 2018 decision the Board denied the service connection claims. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In March 2019, the parties filed a Joint Motion for Remand (JMR). The following month, the Court granted the JMR and remanded these matters to the Board for actions consistent with the JMR. In August 2019, the Board remanded the claims for further development. After accomplishing the above, the AOJ continued to deny the appellant's claims (as reflected in an October 2021 supplemental statement of the case (SSOC)). This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). 1. Entitlement to service connection for COPD Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service.38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.38 C.F.R. § 3.303(d). Under 38 U.S.C. § 1116(a)(2) and 38 C.F.R. § 3.309(e), as to Veterans who served in Vietnam during the Vietnam Era, selected diseases may be presumed to have resulted from exposure to herbicide agents such as Agent Orange. According to the Veteran's service records, he served in Vietnam during the Vietnam Era, therefore, his exposure to toxic herbicides is presumed. However, COPD is not included in the regulations as diseases that are subject to this presumption. See 38 C.F.R. § 3.307, 3.309(e). Therefore, the presumption of service connection due to herbicide exposure is not warranted. Service connection may also be granted for a disability due to a qualifying chronic disability of a Veteran who served in Southwest Asia during the Persian Gulf War provided that such disability became manifest during either active service in Southwest Asia or to a degree of 10 percent or more not later than December 31, 2021. By history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). The record reflects that the Veteran had service in Southwest Asia in 1990 and 1991, during the Persian Gulf War and, therefore, such laws and regulations are applicable to his claims. However, a chronic qualifying disability means a chronic disability resulting from an undiagnosed illness, various specific medically unexplained chronic multisymptom illnesses, or any diagnosed illness that the Secretary determines warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2)(i). As discussed below, the Veteran has been diagnosed with COPD. Since 38 C.F.R. § 3.317 only operates where the evidence demonstrates an undiagnosed illness, i.e., one that is not attributed to any known clinical diagnoses, and since the Veteran has a specific medical diagnosis for his claimed condition, service connection under 38 C.F.R. § 3.317 is precluded. Nevertheless, even though the Veteran's COPD is not presumed to be related to herbicide exposure and is not a qualifying undiagnosed illness relating to service in Southwest Asia, the Board will consider whether the evidence indicates the Veteran's COPD is related to service on a direct basis. In the August 2019 remand, the Board directed the AOJ to obtain outstanding treatment records from Dr. W.G., which was accomplished in September 2019. In addition, VA medical examination was obtained in May 2021, pursuant to the Board's remand directives. The examiner indicated that he reviewed the Veteran's medical history and claims file, to include his testimony at the April 2014 Board hearing and other lay statements regarding exposure to burning human waste and other products during Operation Desert Storm in 1991, as well as colds, shortness of breath, and a coughing history. However, he opined that the Veteran's COPD was less likely than not related to his active service. As rationale, he noted that the Veteran served in the Persian Gulf for seven months during Operation Desert Storm and "burn pits also have the potential to cause COPD." However, he stated that there was no medical evidence of COPD until approximately 2003, 12 years after service discharge, and that the Veteran had a lengthy history of cigarette smoking. Notably, he remarked that the Veteran "had a 40 pack year history of smoking [before] quitting in 2003. A 40 pack year history of smoking is the equivalent of smoking 1 pack of cigarettes per day for 40 years straight. Smoking is the number one cause of COPD." In addition, the examiner found that the burn pit reports from the Veteran were inconsistent. At his April 2014 Board hearing, the Veteran claimed to have been routinely exposed to human and other waste burn pits. However, VA treatment records dated in September 2010 note that he reported he was exposed to "something" causing his COPD but did not mention exposure to a burn pit. Moreover, at a November 1994 VA mental health examination, the Veteran was asked about smoke exposure during Operation Desert Storm, but stated that he only had two to three days of oil smoke exposure and reported that it was nothing continuous. He also denied any chemical exposure. For the following reasons, entitlement to service connection for COPD is not warranted. Service treatment records (STR) dated in January 1991 indicate that the Veteran was diagnosed with bronchitis and sinusitis. In his April 1991 separation examination, the Veteran's lungs and chest were reported to be normal. In his April 1991 report of medical history, the Veteran stated that he was in fair health but that he had sinusitis and hay fever one year ago. However, he denied shortness of breath, pain or chest pressure, chronic cough, chronic/frequent coughs, and heart trouble. Following service, a March 2004 private treatment record noted a negative chest x-ray. Private treatment records dated in December 2005 note that his COPD is stable and disclosed his decades long history of smoking one pack of cigarettes per day. As noted above, at the April 2014 Board hearing, the Veteran testified that his COPD was caused by frequent exposure to burn pits during Operation Desert Storm. VA examinations in April 2011 and July 2015 were found to be inadequate by the Board and Court and were remanded to the AOJ for new medical opinion to address the Veteran's lay assertions. The Board finds that the May 2021 VA examiner's opinion considered all of the pertinent evidence of record, to include statements of the Veteran regarding burn pit exposure, and provided a complete rationale, relying on and citing to the records reviewed, and offered a clear conclusion with supporting data as well as reasoned medical explanations connecting the two, the Board accords great probative weight to his opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). Therefore, the Board finds that the May 2021 VA examiner's opinions, which provided a detailed rationale for the conclusion reached is highly probative. In addition, the Board notes absence of post-service findings of, diagnosis of, or treatment for COPD symptoms for 12 after service separation is one factor that tends to weigh against the claim. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Moreover, the Board notes that statements made for treatment purposes are particularly trustworthy because an individual has incentive to report accurately the history of injury and symptoms in order to receive proper care; therefore, the Veteran's November 1994 and September 2010 statements which denied exposure to burn pits and indicated that he only had two to three days of oil smoke exposure and that such exposure was not continuous are credible and of significant probative value and weighs against an in-service onset of COPD. The more recent account of regular burn pit exposure, which was first made many years after service and separation and pursuant to his claim filing is less credible, and is of lesser probative value. The Board acknowledges the April 2014 private medical report from K.W., an APRN, which concluded that it is at least likely as not that the Veteran's condition was related to his service in the Gulf War in 1990-1991. However, the opinion is not supported by a rationale, and thus the Board will afford no probative value. In light of the evidence of record, the Board finds that the preponderance of the evidence is against a finding of a nexus between the Veteran's COPD and his military service, to include exposure to burn pits during Operation Desert Storm. Accordingly, as the late Veteran's COPD was not shown to be causally or etiologically related to any disease, injury, or incident in service, and it did not manifest to a compensable degree within one year of separation from active duty, service connection for COPD is not warranted. In reaching this decision, the Board considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the appellant's claim of entitlement to service connection for COPD, and that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Unfortunately, the appellant's claim for service connection for a skin disorder must be remanded again. In the August 2019 remand, the Board directed the AOJ to obtain VA medical opinion that addressed the Veteran's lay statements regarding the circumstances of his service and his skin disorder. This included the Veteran's testimony at his April 2014 Board hearing that he began to show symptoms during service in the Gulf War but did not seek treatment while he was deployed. Pursuant to the remand directives, VA medical opinion was obtained in May 2021. The examiner noted the Veteran's skin diagnoses, but opined that it was less likely than not related to his active service. As rationale, he stated that there were "no complaints related to skin until years after time in service when he was seen multiple times and has had several different skin diagnoses." The examiner concluded that "[t]here are no records supporting onset during time in service other than the Veterans claims in his testimony and lay statement." However, the opinion is flawed because the examiner failed to consider the Veteran's lay assertions that his skin disorder began in service and his continued since discharge from service. The examiner instead appeared to base his opinion on the absence of any noted skin condition in service, which is not permissible. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination is inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion). For the reasons set forth above, the Board finds that this opinion is inadequate. See id. Because the directives of the prior Board decision were not substantially complied with, new VA opinion must be obtained. Dyment v. West, 13 Vet. App. 141, 14647 (1999); Stegall v. West, 11 Vet. App. 268 (1998). The matter is REMANDED for the following action: 1. Send the Veteran's claims file to an appropriate medical professional to obtain addendum opinion regarding the etiology of his skin disability. The Veteran's entire electronic claims file must be made accessible to the designated professional for review. A detailed rationale for any opinion expressed should be provided. Following the review of the claims file, the medical opinion provider is then requested to respond to the following: (a) Is it as least as likely as not (a 50 percent probability or greater) that the Veteran's skin disorder is related to his active service? In providing any requested opinion(s), the examiner must address the Veteran's lay assertions, to include his assertions that his skin disorder began in service. See, e.g., April 2014 Board hearing. The examiner is advised that the late Veteran was competent to report his symptoms and history and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. The absence of evidence of treatment for skin problems in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kovacs, 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.