Citation Nr: 21012143 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 17-44 378 DATE: March 3, 2021 ORDER 1. New and material evidence sufficient to reopen the claim for service connection for breathing problems, to include chronic obstructive pulmonary disease (COPD) and emphysema, has been received, and the application to reopen the claim is granted. 2. The reopened claim of entitlement to service connection for a respiratory disability, claimed as breathing problems, to include COPD and emphysema, is denied. FINDINGS OF FACT 1. An August 2013 rating decision denied service connection for breathing problems based on a finding that the evidence did not support that the Veteran had a breathing problem that had its onset in service or was otherwise related to service and was not caused or aggravated by a service-connected disability. In the August 2013 notification letter, the Veteran was notified of this decision, which included his appellate rights. He did not appeal the decision or submit new and material evidence during the applicable one-year appellate period. 2. Since the April 2013 rating decision, the Veteran has alleged that he developed a respiratory disability due to exposure to jet fuel while in service, which he had not alleged before and raises a reasonable possibility of substantiating the claim. 3. The preponderance of the evidence is against finding that the Veteran’s has a respiratory disability that was incurred in or is otherwise related to service. CONCLUSIONS OF LAW 1. The August 2013 decision denying service connection for breathing problems is final. New and material evidence has been received to reopen the claim for service connection for breathing problems. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. The criteria for service connection for a respiratory disability, to include COPD and emphysema, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from June 1972 to June 1978. The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge in June 2020. A transcript of the hearing was prepared and associated with the Veteran’s claims file. At the Veteran’s virtual hearing, the undersigned agreed to leave the record open for 90 days to provide the Veteran an opportunity to submit additional evidence to support this claim, but no additional evidence was submitted. New and Material Evidence 1. New and material evidence sufficient to reopen the claim for service connection for breathing problems In July 2012, the Veteran submitted multiple claims for service connection, which included a claim for service connection for breathing problems secondary to hepatitis C treatment. In an August 2013 rating decision, the agency of original jurisdiction (AOJ) denied service connection for breathing problems based on a finding that the evidence did not support that the Veteran had a breathing problem that had its onset in service or was otherwise related to service and was not caused or aggravated by a service-connected disability. In the August 2013 notification letter, the Veteran was notified of this decision, which included his appellate rights. He did not appeal the decision or submit new and material evidence during the applicable one-year appellate period. Thus, the August 2013 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. If a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers, while material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Only evidence presented since the last final denial on any basis (whether by the Board of Veterans’ Appeals (Board) or AOJ, and whether upon the merits of the case or upon a previous adjudication that no new and material evidence had been presented) will be evaluated in the context of the entire record. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Regardless of the AOJ’s actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108 and 7105 to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. Since the August 2013 rating decision, the Veteran has alleged that he developed a respiratory disability due to exposure to jet fuel while in service, which had not been alleged before and raises a reasonable possibility of substantiating the claim. Thus, new and material evidence sufficient to reopen the claim for service connection for breathing problems has been received. The RO had reopened the claim, provided the Veteran with a VA examination, and adjudicated the claim on the merits. Thus, the Board may also consider the claim on the merits as well. The Board finds that the Veteran’s claim for service connection for breathing problems is better characterized as a claim for service connection for a respiratory disability, to include COPD and emphysema. 2. Entitlement to service connection for a respiratory disability, to include COPD and emphysema The Veteran believes that his respiratory disability had its onset during service. The Veteran testified during his Board hearing that he was doing a modification on a CH-47 and he had to crawl inside of the fuel bladder. He said that he got asphyxiated from hydrocarbons from the JP-4 fumes. He testified that shortly afterwards, he was taken to the emergency room and transferred to Army Tripler Hospital. At the time of the August 2013 rating decision, the Veteran had alleged that his breathing problems had been caused or aggravated by his hepatitis C (which is now service connected). However, during the current appeal, the Veteran has not alleged a secondary theory of entitlement either in his written submissions or at the June 2020 Board hearing, and there is no competent evidence of a nexus between a respiratory disability and a service-connected disability. Thus, the Board is considering direct service connection only. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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 Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for a respiratory disability, to include COPD and emphysema. The reasons follow. As to evidence of a current disability, a May 2017 VA examination report shows that the Veteran was diagnosed with COPD. VA treatment records also show a diagnosis of emphysema. Therefore, the facts establish that the first element of a service-connection claim is met. As to evidence of an in-service disease or injury, the service treatment records show that the Veteran was treated for breathing problems. For example, in August 1975, the Veteran was treated for apparent inhalation of jet fuel fumes. The next day, he was discharged for duty, as there were no signs of pulmonary implications of hydrocarbon inhalation. In the August 1971, April 1973, August 1975, and April 1978 Reports of Medical Examination, the Veteran was found clinically normal in all areas, including lungs and chest. In the accompanying Reports of Medical History, the Veteran denied ever coughing up blood. Furthermore, he also denied ever having or having now ear, nose, or throat trouble; sinusitis; hay fever; chronic cough; asthma; or shortness of breath. Additionally, an April 1978 chest examination showed no significant abnormalities. In April 1978, the Veteran was treated for sinus congestion. In May 1978, the Veteran was seen after a complaint of upper respiratory infection symptoms. Thus, the facts establish that the Veteran had an in-service disease or injury, and the second element of a service-connection claim is met. As to evidence of a nexus between the current respiratory disability and service, the Board finds that the preponderance of the evidence is against a nexus. For example, a May 1983 Report of Medical Examination shows that clinical evaluation of the lungs and chest was normal. The Veteran completed a Report of Medical History at that time, which shows he denied ever having or having then ear, nose, or throat trouble; chronic cough; asthma; or shortness of breath. He also wrote he was in good health. A May 2008 VA treatment record shows that the Veteran sought to re-establish care with VA at that time. When a review of systems was performed and the respiratory system was addressed, the Veteran denied cough, shortness of breath, and hemoptysis. At this point, it had been approximately 30 years following service discharge, and the Veteran was not reporting breathing problems or respiratory symptoms both in 1983 and 2008, which tends to establish that a respiratory disability did not have its onset in service. An April 2012 VA treatment record shows that the Veteran reported he had quit smoking for four months. He noted that he had shortness of breath after eating but not with exertion. A separate April 2012 VA medical treatment record documents that the Veteran’s breathing tests confirmed moderate to severe obstruction from his smoking, and the examiner informed the Veteran that he should do everything he could to continue to stay away from cigarettes. In a March 2013 VA examination report, the examiner documented the Veteran stated that he had a 46-year smoking history and that he had quit smoking a year and a half ago. A March 2015 VA treatment record shows the Veteran complained of running out of breath with exertion for the past four weeks. Thus, the Veteran’s respiratory issues began decades following service discharge, which does not support a nexus to service. Additionally, in a May 2017 VA examination report, a VA examiner opined that the Veteran’s respiratory disability was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner stated that a review of the Veteran’s treatment records shows that the Veteran is a long-time smoker, and there is evidence of treatment for smoking cessation through nicotine treatment in 2011. The examiner also noted that the service treatment records from August 1975 show evidence of inhalation of JP4 fumes for two hours, with a baseline chest x-ray as normal. The examiner noted that the service treatment records showed that the Veteran had symptoms of lightheadedness at that time, and he was treated with Kenalog IM and Keflex. The Veteran was also advised not to smoke. The examiner stated that UPTODATE and peer reviewed medical literature cite that tobacco smoking is the most important risk factor for COPD and that smoking accounts for approximately 85 to 90 percent of COPD cases, with a minor contribution of secondhand smoke. Occupational exposure has been cited as a minor contributing factor for COPD and these occur in long-term exposure, such as those who are coal miners, hard rock miners, tunnel workers and concrete manufacturers. An increased risk of COPD in firefighters has been attributed to genetic abnormalities and not just to the occupation alone. The examiner went on to state that health effects to pollutants, including fuel fumes, are dependent on the proximity to the source and duration of exposure. Short-term exposure to fumes may cause temporary symptoms of respiratory tract irritation, dizziness, headache, or nausea. She noted the Veteran had experienced nausea and lightheadedness after his inhalation in 1975. The examiner cited a 2001 study, where over 5600 Air Force personnel were evaluated, and comparisons were made between those personnel that were exposed to aircraft fuel and those who were not exposed. The study showed that the total numbers of medical visits, including respiratory illness, was not markedly different between these two groups. Additionally, the examiner cited another report that showed the symptoms resulting from short-term exposure are generally short-lived effects and go away after the exposure ends. The examiner noted that the Veteran had a short-term transient exposure to fuel fumes in 1975. The service treatment records document that a chest x-ray was completed to rule out chemical pneumonitis, which was normal. The examiner concluded that the Veteran’s 45-year smoking history is by far his most important risk factor in developing COPD and it is less likely than not due to his exposure to fuel fumes while he was in the service. The Board affords the May 2017 VA medical opinion high probative value, as the examiner thoroughly reviewed the file, interviewed the Veteran, and provided a detailed opinion that was based on evidence in the file, including what was documented in the service treatment records, medical literature, and medical principles. This is evidence against a nexus between the current respiratory disability and service. As to the Veteran’s disability being attributed to his long history of smoking, Congress has prohibited the grant of service connection for disability due to the use of tobacco products. 38 U.S.C. § 1103(a); see also 38 C.F.R. § 3.300. Specifically, for claims received by VA after June 9, 1998 (as is the case here), 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. While the Veteran has alleged that his respiratory disability is related to service, to include his exposure to jet fuel, he is not competent to offer an opinion as to the etiology of his respiratory disability, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. COPD and emphysema, require specialized training for determinations as to diagnosis and causation, and is, therefore, not susceptible to lay opinions on etiology. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion is nonprobative evidence. At the present time, there is no competent evidence of a positive nexus between the Veteran’s respiratory disability, to include COPD and emphysema, and service to weigh against the May 2017 VA opinion. For all the reasons described above, the Board finds the preponderance of the evidence is against the Veteran’s claim for service connection for a respiratory disability, to include COPD and emphysema. There is no reasonable doubt to be resolved, and the claim for service connection is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Griffin, 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.