Citation Nr: 21076821 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 20-09 174 DATE: December 27, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disorder (COPD) is denied. REMANDED The claim for an increased disability rating in excess of 0 percent for bilateral hearing loss is remanded. FINDING OF FACT The most probative evidence of record is against finding that the Veteran's COPD began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria have not been met for service connection for COPD. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in United States Air Force from April 1961 to April 1965. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran presented testimony via video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1101, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 1. Entitlement to service connection for COPD. The Veteran contends that his COPD is a result of his military service. Specifically, he contends his exposure to jet fumes every day for up to eight hours a day resulted in his COPD. See October 2021 Board Hearing. First, there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). A September 2017 private treatment record documents a diagnosis of COPD. A January 2020 VA examination documents a diagnosis of COPD and benign or malignant neoplasm of the respiratory system. Thus, the first element of service connection is met. Second, there was not an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran's DD Form 214 indicated that during service his military occupational specialty (MOS) was Aircraft Mechanic which placed him in a position that exposed him to smoke and fumes. The Veteran's service treatment records (STRs) are silent for complaints, treatment or diagnosis for COPD. The March 1965 separation report of medical examination documents normal lungs and chest. In his March 1965 separation report of medical history, the Veteran indicated he was in excellent health, noting no shortness of breath, pain or pressure in chest, or chronic cough. Thus, the most probative evidence is against a finding of in-service symptoms or diagnosis. The Board acknowledges that there was in-service exposure to jet fumes due to his duties as an Aircraft Mechanic. Third, the evidence of record does not support a finding that the Veteran's COPD is related to active service. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran submitted a March 2017 private opinion. The clinician opined that the Veteran's exposure to high levels of smoke and fumes in service were a major contributor to his respiratory condition and subsequent development of COPD. The clinician noted the Veteran's history of smoking cigarettes but found that his in-service exposure to jet fumes was the reason he developed COPD. The Veteran also submitted a September 2017 private opinion. The clinician noted that the Veteran's duties as an aircraft mechanic included aircraft refueling thereby exposing him to substantial amounts of aircraft exhaust fumes and smoke. The clinician opined, "his service in the military where he was exposed to high levels of smoke and fumes has contributed greatly to development of COPD." The clinician asserted that although the Veteran had a history of cigarette smoking, he quit 8 years ago, and the exposure to smoke and fumes in services is what lead to the development of his COPD. The Board finds that the probative value of the 2017 opinions to be limited. The probative value of a medical opinion comes from the factually accurate, fully articulated, and sound reasoning for the conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts). However, these opinions are conclusory and do not provide the rationale required for persuasive nexus evidence in this case. Although the opinions are based on the Veteran's military history and medical history, the opinions do not include a reasoned medical explanation as to why or how the Veteran's exposure to jet fumes caused his COPD. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). The Veteran underwent a VA examination in January 2020. The examiner opined that the Veteran's COPD was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there is documented exposure to jet exhaust during service; however, there is also objective evidence of the Veteran being a long-term smoker during service and post-service. The examiner explained that "research has shown that the main cause of COPD is tobacco smoking, and it is a slow developing respiratory condition." Further the examiner explained, the Veteran's diagnosis of COPD came 50 years post service in 2015. Also, the examiner noted that post-service records "show consult made to Pulmonary for right lung mass and diagnosis of COPD." Therefore, the examiner concluded the Veteran's COPD is less likely than not incurred in or caused in-service exposure to jet exhaust. The Board accords the findings of the January 2020 VA examiner significant probative weight, as the as the examiner demonstrated a detailed understanding of the Veteran's medical history and medical records, cited to medical research, and provided reasoning supported by an explanation. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In support of his contention, the Veteran submitted a Mayo Clinic medical article in February 2020 which discussed COPD. The article noted that long-term exposure to chemical fumes, vapors and dusts in the workplace can irritate and inflame lungs; however, the article also stated that the main cause of COPD is long-term cigarette smoking. The Board notes that medical evidence shows that the Veteran reported he was a long-term cigarette smoker until May 2015. See January 2020 VA examination. Overall, the more probative medical evidence does not show that COPD manifested in service or is otherwise related to service, and thus the criteria for direct service connection are not met. Moreover, the law mandates that, for claims received by VA after June 9, 1998, a disability will not be considered service-connected on the basis that it resulted from injury or disease attributable to a veteran's use of tobacco products during service. See 38 U.S.C. § 1103; 38 C.F.R. § 3.300(a). Therefore, service connection for COPD due to the use of tobacco products in service is precluded. The Board has not overlooked the Veteran's lay statements that his COPD is related to his military service. The Veteran is competent to describe his in-service experiences and current symptomatology. However, the Board finds that the question regarding the potential relationship between his diagnosed upper respiratory disorder and any instance of his service to be complex in nature. In this regard, he is not competent to opine on such a complex medical question. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Thus, the Veteran's statements regarding etiology are not assigned probative value. Accordingly, the competent and probative evidence weighs against the Veteran's claim, and service connection is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. The claim for an increased disability rating in excess of 0 percent for bilateral hearing loss is remanded. The Veteran last received a VA hearing loss examination in January 2020. In testimony provided at October 2021 Board hearing, the Veteran asserted that his hearing loss had worsened in severity since his last VA examination in 2020. The Veteran should be provided an opportunity to report for a contemporaneous VA examination to ascertain the current severity and manifestations of his service-connected bilateral hearing loss. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following action: 1. Obtain all updated records (i.e., those not already of record) of VA and adequately identified private treatment the Veteran has received for the disability on appeal. Following receipt of any outstanding records schedule the Veteran for a VA audiological examination to determine the current severity of his bilateral hearing loss. The Veteran's entire claims file, to include a copy of this remand, should be provided to the examiner. All necessary tests should be performed, and the results reported. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Braxton, 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.