Citation Nr: 21011317 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 09-34 787 DATE: March 1, 2021 ORDER Entitlement to service connection for COPD, to include as secondary to service-connected sleep apnea and/or as due to in-service exposure to chemical or environmental hazards, is denied. FINDING OF FACT The Veteran’s COPD did not manifest during or as a result of his active duty service and is not caused or aggravated by his service-connected sleep apnea. CONCLUSION OF LAW The criteria for entitlement to service connection for COPD, to include as secondary to service-connected sleep apnea and/or as due to in-service exposure to chemical or environmental hazards, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1978 to February 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2013, the Board remanded the appeal for additional development. In April 2016 the Board, in part, denied service connection for COPD. The Veteran appealed the portion of the April 2016 Board decision that denied service connection for COPD to the United States Court of Appeals for Veterans Claims (CAVC). In a December 2016 Order, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the Board’s April 2016 denial of service connection for the Veteran’s COPD and remanding for additional proceedings. In October 2017, April 2019, and August 2020, the Board remanded the appeal for further development. As the actions specified in the August 2020 remand have been substantially completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Additional evidence was added to the file following the most recent adjudications of the issues on appeal by the agency of original jurisdiction (AOJ). In February 2021 correspondence, the Veteran waived his right to AOJ review of this evidence. As such, the Board may properly consider such evidence at this time. 38 C.F.R. §§ 20.901, 20.1305(c). Duties to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Service Connection Generally, to establish service connection 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." Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); 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 establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated (worsened) by a service-connected disability. Id. Entitlement to service connection for COPD, to include as secondary to service-connected sleep apnea The Veteran contends that his COPD manifested during his military service. Specifically, he asserts that his COPD was a result of in-service exposure to exhaust fumes and chemicals, as his military occupational specialty (MOS) was airfield management specialist. Alternately, the Veteran alleges that his COPD is secondary to his service-connected sleep apnea. Based on a careful review of all the subjective and clinical evidence of record, the preponderance of the evidence weighs against finding service connection for COPD is warranted. The record shows that the Veteran has a current diagnosis of COPD. Service treatment records (STRs) reveal a normal chest x-ray at enlistment, two occurrences of bronchitis in 1977 (pre-enlistment) and 1979, and normal lungs and chest noted on separation. STRs do not show additional complaints of, treatment for, or others diagnoses of pulmonary or respiratory disabilities, to include COPD, and no chronic treatment for the Veteran’s bronchitis is noted. A January 1980 separation examination indicates the Veteran as having “normal” lungs and chest. In the summary section of the separation exam form, the physician noted that the Veteran coughed up blood in January 1977 secondary to bronchitis, and additional treatment for bronchitis in January 1979. STRs also include a September 1978 chest x-ray conducted as part of the Veteran’s enlistment exam, with no significant abnormalities noted. VA treatment records include multiple pulmonary function tests (PFT), chest x-rays, and generally reflect ongoing treatment for COPD. A July 2003 PFT showed possible early mild obstruction. A March 2003 chest x-ray revealed flat diaphragms suggesting COPD, the Veteran’s lungs were clear. November 2005 records reflect that the Veteran presented to the emergency room and was treated for pneumonia. October and December 2005 VA chest x-rays revealed COPD. PFTs conducted at VA facilities in February and March 2006 were both normal. A June 2006 VA CT scan revealed some pleural effusion and resulted in a diagnosis of early mild obstructive lung disease. The Veteran was also advised at this time to quit smoking. The same treatment note also indicates a concern for asbestos exposure in light of the Veteran having worked in the construction industry for 15 years. A November 2007 VA treatment record reflects that the Veteran was advised that his smoking would cause COPD. VA PFTs conducted in January and September 2008 revealed mild obstruction. In September 2008, the Veteran underwent a VA examination. The VA examiner noted that the Veteran smoked between a half a pack and one pack a day and was diagnosed with COPD in October 2006. The examiner noted the Veteran’s reports of shortness of breath. She also noted he had stopped biking, due to increasing shortness of breath, and that the Veteran could only work short distances (noting that he had trouble walking around the grocery store). The Veteran reported having been prescribed three different inhalers, and that he discontinued use as he did not feel those medications gave him any relief. He did not have complaints of cough or sputum production. The examiner diagnosed the Veteran with COPD and concluded that his COPD was as likely as not related to the Veteran’s many years of tobacco abuse. The examiner also noted that sleep apnea does not caused COPD. While, the CAVC found this opinion to be inadequate because the examiner failed to address aggravation, the remaining parts of the exam are probative as to the then current state of the Veteran’s COPD. A May 2009 VA chest x-ray revealed hyperinflation and a diagnosis of emphysema. An April 2010 x-ray revealed a clear chest with underlying COPD unchanged in comparison with the May 2009 chest x-ray. May 2010 and December 2011 VA PFTs suggested mild obstruction. An April 2015 chest x-ray revealed findings suggestive of COPD with no active disease of the lungs. A November 2016 CT without contrast of the Veteran’s thorax revealed small right pleural effusion and a very small left pleural effusion. A December 2016 chest x-ray revealed possible tiny residual left pleural effusion with a resolved right pleural effusion compared with the November 2016 imaging. No new acute process and otherwise clear chest with COPD. In December 2017, the Veteran underwent a respiratory conditions VA examination. The Veteran reported that he continued to have shortness of breath, could walk about a block before having to rest if he needed to go any further. The Veteran reported this becoming increasingly worse. He had been using two inhalers, one daily, and the other 3-4 times daily, depending on the activities he was doing. The examiner recorded functional impact in the form of limiting the Veteran’s activities, that he can barely walk a block, limiting his ability to do household chores, noting that he cannot do much work and that his daughter helps him with groceries, laundry, cleaning, etc. The examiner noted that the Veteran smoked one pack per day for many years and that he had quit smoking a week prior. The examiner concluded that the Veteran’s COPD is less likely than not caused by, a result of, or related to the Veteran’s military service, or secondary to or aggravated by the Veteran’s service-connected sleep apnea. In support of her conclusion regarding direct service connection, the examiner stated that while the Veteran had “Acute Bronchitis” once before service in 1977 and once during, that there is no evidence that the Veteran had any chronic respiratory symptoms while in service, or even after discharge in 1980, until 2008, 28 years after discharge. Regarding secondary service connection as related to the Veteran’s sleep apnea, the examiner stated that there is no relationship between sleep apnea and COPD and explained that literature does not support sleep apnea as a risk factor for causing or aggravating COPD. The examiner listed definite COPD risk factors of smoking and increased airways responsiveness. The examiner also noted that environmental exposures other than smoking, atopy, and antioxidant deficiency may also be risk factors. The Board found the December 2017 exam to be inadequate because the examiner again failed to address aggravation, however the remaining parts of the exam and opinion are still probative. The Board also found that an addendum opinion was necessary to address the Veteran’s contention that his COPD was related to his in-service exposure to exhaust and chemicals. In a November 2019 opinion, a VA examiner opined that the Veteran’s COPD was less likely than not due to his military service, to include as due to in-service exposure to exhaust and chemicals. The examiner found that the Veteran’s smoking tobacco and marijuana synergistically increased the risk of COPD. The examiner acknowledged the Veteran’s MOS and found that his duties did not “appear to have a high probability of exhaust or chemical exposure.” She then stated that “even if [the Veteran] did have some exposure to exhaust and chemicals during his time in service, smoking still remains the most important risk factor for COPD.” The Board found the examiner’s direct service connection opinion flawed because her rationale focused on her findings that smoking was the “most important risk factor for COPD,” and did not discuss other in-service risk factors or causation for the Veteran’s COPD. Further, the Board found that the examiner’s negative nexus opinion was based on her own findings as to how much the Veteran was exposed to exhaust and chemicals during service. As such, the November 2019 examiner’s direct service connection opinion is entitled to no probative weight. As to aggravation, the November 2019 VA examiner provided an opinion that the Veteran’s COPD was less likely than not aggravated by his service-connected sleep apnea. The examiner noted that medical literature does not support the contention that COPD can be aggravated by sleep apnea. The examiner stated that the Veteran’s COPD is more likely than not worsening since it was first diagnosed 11 years ago due to the fact that he has continued to smoke, not because the Veteran has sleep apnea or due to him being on two forms of medication. After searching UpToDate, the examiner listed definite clinical risk factors for COPD of smoking and increased airway responsiveness. The examiner also discussed potential risk factors of environmental exposure, being female, atopy, asthma, antioxidant deficiency, bronchopulmonary dysplasia, tuberculosis, all as indicated by some medical studies. The examiner also noted studies that have considered molecular risk factors of COPD using several different methods. She noted a variety of gene polymorphism studies that have been identified to potentially increase the risk of COPD, and provided several examples. The examiner provided that indirect evidence suggests that smoking cessation has the greatest impact on preventing COPD. The examiner referenced a retrospective study that found the incidence of COPD over 25 years to be less among patients who had never smoked or quit smoking than among those who continued to smoke. The examiner also referenced a number of other studies, none of which suggestive a link may exist between COPD and sleep apnea. In August 2020, the VA obtained a review opinion to address direct service connection for the Veteran’s COPD, including as due to in-service exposure to exhaust and chemicals. After reviewing the Veteran’s claims file, the examiner opined that based on the absence of symptoms and findings of COPD on the Veteran’s January 1980 separation exam, absence of symptoms of COPD in 2005 and 2006, absence of radiograph findings of COPD on chest radiographs dated May 24, 2005, and on normal PFT in 2002 with normal FEV1/FVC values until 2008, and given Veteran’s period of service of September 1978 to February 1980, that the Veteran’s COPD is less likely than not incurred in or caused by the Veteran’s military service, to include as due to exposure to exhaust and chemicals. In October 2020, the Veteran underwent an additional VA examination. The Veteran has not worked since 2008 and his last job was as a computer technician. The examiner noted functional impact in the form of the Veteran having limited energy and is unable to traverse many stairs. The Veteran requires a rolling seated walker to ambulate. Severe asthmatic episodes make it hard for the Veteran to breath and make even basic activities of daily living difficult. Intermittent episodes of pneumonia result in limited energy and require antibiotic therapy. Intermittent episodes of bronchitis result in limited energy and may require antibiotics. The examiner found that the Veteran’s COPD would seem to be most likely be related to a long history of smoking. That while the Veteran may have had some exposure while involved with the Veterans Industries Program (VIP), a long history of smoking would be a much more likely etiology. The examiner found it noteworthy that the Veteran did not have x-ray evidence of COPD until after his work in the VIP program but did have symptoms prior to the program. He also had bronchitis on multiple occasions prior to his work in the VIP program. The examiner acknowledged that the Veteran does have COPD based on his history and physical exam (decreased breath sounds at the bases on physical exam today without adventitious sounds) but it is not clear if his military service had anything to do with the diagnosis. Although sleep apnea and COPD coexist in individuals (Overlap syndrome), sleep apnea does not cause COPD. It seems much more likely that long standing smoking is the cause of this Veteran's COPD. There is no evidence that the examiners were either not competent or credible. Further, all examiners based their assessments of the Veteran's disability on the Veteran's own account of his symptoms and their own objective evaluations. As such, the Board finds that each examination report is entitled to significant probative weight as to the nature and etiology of the Veteran’s COPD. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board has also considered the Veteran's lay statements. Although the Board recognizes that the Veteran is competent to describe his observable symptoms of COPD, he is not competent to opine as to the etiology of his disability, as he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Veteran's lay opinions that his COPD is related to his in-service exposure to exhaust fumes and chemicals, or in the alternative, that his COPD is secondary to his service-connected sleep apnea, do not constitute competent medical evidence and lack probative value. For the foregoing reasons, the Board finds that a preponderance of the evidence weighs against the Veteran's claim for service connection claim for COPD, on both a direct and secondary basis. Because the evidence fails to establish that the disability was incurred in or caused by service or is proximately due to or aggravated by a service-connected disability, the Veteran’s claim does not satisfy the criteria for service connection. As such, the benefit-of-the-doubt rule does not apply, and the service connection claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Gates 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.