Citation Nr: 21010929 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 14-05 521 DATE: February 26, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disorder (COPD) is denied. FINDINGS OF FACT A respiratory disorder, diagnosed as COPD, manifested more than one year after separation, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for chronic obstructive pulmonary disease (COPD) have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1963 to June 1966. This case is before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board remanded the COPD issue on appeal for additional development in January 2016, May 2020, and October 2020. The directives having been substantially complied with, the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran had originally requested a hearing regarding the COPD issue, but then canceled that hearing request in written correspondence to the Board in January 2019. That hearing request is therefore considered withdrawn. 38 C.F.R. § 20.704(d). The Veteran made a Privacy Act request in written correspondence dated January 29, 2020. On November 12, 2020, VA responded with the last parts of the requested material, and the Board considers the Privacy Act request to have been satisfied in full. The Board will thus proceed with the adjudication of this claim. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2020). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board….to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection for COPD Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). 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). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In making that decision, the Board must determine the probative weight to be ascribed as among multiple medical opinions, and state the reasons and bases for favoring one opinion over another. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); see also Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). This responsibility is particularly important where medical opinions diverge. The Board is also mindful that it cannot make its own independent medical determinations, and that there must be plausible reasons for favoring one medical opinion over another. See Evans at 31; see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Service Connection for COPD – Evidence and Analysis The Veteran originally filed a claim for COPD in November 2016, asserting that his respiratory disorder, diagnosed by VA as COPD, was due to his military active service exposure to aircraft fuels, especially the additive tricresyl phosphate, which was used to make military jet fuel compatible with gasoline engines. The Veteran himself provided a private medical opinion in July 2017 from a physician who specialized in internal medicine. This physician noted the Veteran’s own history and claims of exposure to additives in aviation fuels, and noted a medical paper regarding the toxicity of commercial jet oils. The physician noted that COPD “can be exacerbated” by breathing jet fuel fumes, and also that with regard to the Veteran’s prostate cancer, that jet fuels in general have been shown to be carcinogenic. The physician concluded by noting the Veteran’s exposure to aviation fuel while in service “may be related” to his current medical diagnoses. The Veteran received a VA examination for his COPD in November 2018. The examiner noted the initial diagnosis of COPD made in April 2016 by VA medical providers. Diagnosis was done via a pulmonary function test (PFT), and that spirometry revealed mild obstruction without a bronchodilator response. No other respiratory disorder was diagnosed. The Veteran had complained of shortness of breath for the past few years and which he said was becoming worse. The Veteran noted to the examiner that he used to smoke cigarettes in the past, about a pack a day, that he had quit 20 years back, and that his total time smoking was approximately 20 years. This November 2018 VA examiner provided an opinion on service connection, noting the Veteran’s claimed condition of COPD was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale was that COPD’s most important and most likely risk factor is cigarette smoking, and that amount and duration of the smoking contributes to disease severity. The examiner pointed out that based on the Veteran’s history, that the Veteran had at least a 20-year history of smoking starting at an early age and continuing well into adulthood, and that was likely the most important factor in the development of his COPD. The examiner noted the Veteran’s assertion regarding his exposure to a specific fuel additive, but considered any such exposure does not rise to the probability as the causative factor for COPD in light of the Veteran’s tobacco smoking history. In response to a remand, VA provided another set of examinations and opinions for the Veteran’s COPD in July 2020 and December 2020, both of which were uploaded to the claims file in December 2020. The nonstandard approach to the scheduling and conduct of this directed examination was due to the exigencies of the coronavirus pandemic extant during the developmental process of this appeal. Here, the two examiners noted the Veteran’s history and his theory that fuel additives to which he was exposed in service are responsible for his COPD. The July 2020 examiner noted the Veteran reported his COPD symptoms began in “2016 or some time prior to that.” He reported the occasional use of albuterol inhalers but had not refilled his supply after he last ran out. He reported there has been no respiratory failure or hospitalizations to note, and no requirement for a nebulizer, oxygen, or ongoing steroids in the present day. Symptoms included shortness of breath and severe dyspnea on exertion. The Veteran related he had smoked cigarettes earlier in his life starting about age 16 but in 2005 had stopped. Pulmonary function testing (PFT) was performed with pre-bronchodilator indications of FVC 91% predicted, FEV-1 80% predicted, FEB-1/FVC 65%, and DLCO was not recorded. X-rays taken during this examination revealed no signs of lung malignancy or other possible problem related to the lungs or pulmonary function. This examiner provided a negative opinion for service connection, saying it was less likely than not, less than 50 percent probability, that the Veteran’s diagnosed COPD was incurred in service or caused by an in-service incident, illness, or injury, to include exposure to any toxic pollutants. The examiner’s rationale was that the Veteran’s adult lifetime habit of tobacco smoking was the most likely cause, and there was no other significant exposure to other possible causes in the claims file or by reference to any of the Veteran’s statements. The examiner specifically noted that there was no specific evidence gathered from the Veteran’s statements or his medical history, cited in any medical literature, that showed the diagnosed COPD condition to have been incurred in active service. The December 2020 VA examiner also diagnosed COPD after noting the Veteran’s reports that he was having difficulty breathing and states his primary doctor had prescribed albuterol. The Veteran reported his theory that his COPD is was caused by his handling of the chemical tricresyl phosphate during active service. The Veteran described that he uses his inhaled bronchodilator therapy on a daily basis. No new PFT testing was performed on this examination. This examiner provided a negative opinion for service connection, saying it was less likely than not, less than 50 percent probability, that the Veteran’s COPD was incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale is that this objective examination was normal and his symptoms are subjective. The claims file was silent for any diagnosis in-service, and the examiner had noted in the comments there was no findings in medical literature regarding a link between petroleum or fuel additives and a causative relationship with COPD. The Board finds the November 2018 and December 2020 VA examination reports and opinions to be of high probative value. Indeed, the examiners considered the Veteran’s contention, the claims file, and clinical medical evidence before providing a negative opinion in each instance. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The examiners’ negative opinions were supported by a sufficiently clear and well-reasoned medical rationale and were consistent with the verifiable facts regarding the Veteran’s contentions. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). The Board notes the somewhat unusual wording of the November 2018 VA examiner’s opinion, that the Veteran’s exposure to aviation fuels “does not rise the probability above 50 percent as being the causative factor.” The Board, in its role as an adjudicator, interprets that medical examiner’s opinion that it was less likely than not, less than 50 percent probability, that the Veteran’s COPD was due to exposure to aviation fuel additives as already discussed, and not as an adjudicator’s statement not within a medical examiner’s purview. However, the Board notes with emphasis, medical opinions do not need to be perfect; they only need to be adequate. The United States Court of Appeals for Veterans Claims (CAVC) has held that a VA opinion report is adequate if it is based on correct facts and sufficiently informs the Board of the medical expert’s judgment on a medical question and the “essential rationale” for the opinion. The report must be “read as a whole” and a medical examiner is not required to provide a detailed review of medical history or comment on every piece of favorable evidence in the record. Monzingo v. Shinseki, 26 Vet. App. 97, 105-7 (2012); see Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that VA examiners do not have a reasons or bases requirement). Where the opinion is lacking in detail, “the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination.” Acevedo, 25 Vet. App. at 294. Furthermore, “the general presumption of competence includes a presumption that physicians remain up-to-date on medical knowledge and current medical studies.” Monzingo, 26 Vet. App. at 106-7. The Board thus finds the November 2018 examiner’s opinion to be valid and considers it to have high probative value in this case. The Board notes the July 2017 private physician’s opinion but gives it very low probative value, due to its conclusory nature and words such as “possible” and “may.” The Board also notes that while the Veteran’s history was taken, this physician did not review the Veteran’s claims file. It is well established that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). The use of the words “possible,” “may,” or “can be” make a doctor’s opinion speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127–28 (1998) (quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993)) (medical opinion expressed in terms of “may” also implies “may or may not” and is too speculative to establish medical nexus). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor’s statement framed in terms such as “could have been” is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (“may or may not” language by physician is too speculative). The Board acknowledges that the Veteran is competent to testify as to his beliefs that his disabilities are related to service. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). In order for lay evidence to be competent, the individual must have personal knowledge, derived from his/her own senses, of what is being attested; “[c]ompetent testimony is thus limited to that which the witness has actually observed, and is within the realm of his personal knowledge.” Layno v. Brown, 6 Vet. App. 465, 471 (1994). Here, the Veteran is competent to testify about his symptoms relating to his claimed respiratory condition. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology of a respiratory condition such as COPD. See 38 C.F.R. § 3.159 (a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current condition, as the causative factors for such are not readily subject to lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, his assertions to that effect are of no probative value. In addition, the Board finds that the gap in time between the Veteran’s last date of active service, in June 1966, to his initial evaluation by any medical provider regarding his COPD in April 2016 to be probative of a lack of nexus between the diagnosed current disability and active service. A negative inference may be drawn from the absence of complaints or treatment for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran has been diagnosed with COPD, and thus the requirement for a current disability has been met. VA, service, and private medical records are silent for any notation of a respiratory disability until April 2016. Competent and probative evidence of record shows the Veteran began smoking in or prior to service, and that his COPD is more likely related to smoking, which continued for at least twenty years, per the Veteran’s own history. Upon review of the record, the Board concludes that entitlement to service connection for a COPD disability is not warranted. The Board notes a current diagnosis of the COPD disability, and thus the requirement for a current disability is shown. The Board acknowledges the Veteran’s contentions, and the Veteran’s post-service statements are noted. However, the service and private medical records are silent for any respiratory disorder until diagnosis of COPD in 2016, and there is no competent evidence to tie the current assertion to any in-service disease or injury. The Board thus finds the Veteran fails the third prong of the test for entitlement to direct service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Also, and significantly, VA regulations prohibit service connection for any disability related to chronic tobacco use (smoking) for claims received by VA after June 9, 1998, which is the case here. See 38 U.S.C. § 1103; 38 C.F.R. § 3.300; Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. No. 105-206, 112 Stat. 685, 865-66 (1998). However, service connection is not prohibited if the disability can be service-connected on some basis other than a Veteran’s use of tobacco products during service, or if the disability became manifest during service. See 38 U.S.C. § 1103 (a); 38 C.F.R. § 3.300 (b)(1). As noted above, the Veteran has been credibly diagnosed with COPD, but not until 2016, fifty years since his exposure to environmental hazards such as aviation fuels. Both VA and private medical records have documented the Veteran’s tobacco smoking habit since his original period of active service from 1963 to 1966. (CONTINUED ON NEXT PAGE) In summary, the medical evidence in this case outweighs the Veteran’s assertions that his current respiratory disorder is of service origin. For these reasons, the preponderance of the evidence is against the claim and service connection for any respiratory disorder, to include COPD, is not warranted. As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is not for application. 38 U.S.C. § 5107(b), 38 C.F.R. § 4.3. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Setter, 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.