Citation Nr: 21016124 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 18-30 622 DATE: March 19, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is granted. Entitlement to service connection for a lumbar disability is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his COPD is at least as likely as not incurred during active service. 2. The Veteran’s lumbar disability is at least as likely as not incurred during service. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to service connection for COPD have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a lumbar disability have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1953 to February 1955. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2018 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The matter was previously before the Board in March 2020, at which time it was remanded for development. The case was returned to the Board for appellate review in February 2021. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in December 2019. A transcript of that proceeding is associated with the claims file. I. Duty to Assist The Board notes that the Veteran’s service treatment records are unavailable, having been destroyed in a fire at the National Personnel Records Center in 1973. When service treatment records are unavailable through no fault of a veteran, there is a heightened obligation on the part of VA to assist the claimant in the development of his case, explain findings and conclusions, and to consider carefully the benefit of the doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board’s analysis of the Veteran’s claims has been undertaken with these heightened duties in mind. II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 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 current 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. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, to include arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease such as arthritis is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to Service Connection for COPD The Veteran maintains that he began experiencing issues with COPD during service. He testified that he was exposed to fumes when he was stationed at Sault Sainte Marie and working in a Quonset hut with a closed hose that burned fuel oil. Applying the benefit of the doubt, the Board finds that the elements of entitlement to service connection for COPD have been met. With respect to current diagnosis, a private physician noted in January 2020 that the Veteran has longstanding airway disease, which was first noted in the record in 1988 and has been variously diagnosed as asthmatic bronchitis, reactive airway disease, asthma, and COPD. In December 2020, a VA examiner confirmed that the Veteran has a current diagnosis of COPD. Accordingly, the first element of service connection has been satisfied. With regard to in-service incurrence, the Veteran asserts he was exposure to air pollutants while stationed at Sault Sainte Marie. The Veteran testified that he worked in a Quonset hut for three months, which housed a coal stove that burned fuel. He reported that the stove clogged up in the winter every three to four days and filled the hut with smoke. The Board notes that the Veteran is competent to report symptoms and observable events within the realm of his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470-471 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Furthermore, the Board finds no reason to doubt the credibility of these statements, as the Veteran’s DD Form 214 confirms that he was stationed at Sault Sainte Marie at the time of discharge in February 1953 and there is no evidence to contradict his testimony. Accordingly, the Board finds that the Veteran’s competent and credible lay statements sufficiently establish the in-service incurrence element of this claim. The remaining question is whether there is a nexus between the Veteran’s in-service exposure to air pollutants and his current diagnosis of COPD. The Board acknowledges that the record contains conflicting reports of tobacco use. Congress has prohibited the grant of service connection for disability due to the use of tobacco products during active service for claims filed after June 9, 1998. 38 U.S.C. §§ 1103 (a), 1110, 1131. Therefore, any claim of service connection based on tobacco use must fail. In this case, a treating record from August 2015 documented follow up for tobacco related obstructive lung disease and another treating record from August 2017 noted that the Veteran reported quitting tobacco more than seven years prior. However, other treating records ranging from 1997 to 2018 consistently note that the Veteran was a “non-smoker” or “never-smoker.” Accordingly, the Board finds that the evidence does not support consistent tobacco use and this cannot serve as a basis for his COPD. The record contains both a negative and positive opinion addressing a nexus. In January 2020, a private physician, offered a positive nexus opinion after concluding that the Veteran is a life-long non-smoker with a diagnosis of COPD and asthma overlap. She expressed her opinion that the Veteran’s COPD and asthma is at least as likely as not directly caused by his exposure to fuel oil combustion byproducts during his military service. In support of this conclusion, she noted that the Veteran’s pre-induction medical examination did not document a history or findings of lung disease and his symptoms did not manifest until after exposure to inhaled fuel oil fumes within a closed operating system. She conceded that the record does not contain documentation of a pulmonary diagnosis until 1988. However, she noted that it is widely accepted within the medical literature that indoor air pollution is associated with an increased risk of lung disease and extended duration of persistent airway obstruction may lead to more severe chronic obstructive airway obstruction in non-smokers. However, this opinion did not address the normal evaluation of the Veteran’s chest and lungs at separation from service and reported post-service work history in factories and construction. In December 2020, a VA examiner offered a negative nexus opinion, concluding that it is less likely than not that the Veteran’s COPD was incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner reasoned that there is much anecdotal evidence to the Veteran’s claim, but there are no in-service records to support a finding that the Veteran’s condition is related to service. However, the December 2020 VA examiner failed to acknowledge the fact that the Veteran’s service treatment records were destroyed and unavailable for review. The VA examiner also failed to address the Veteran’s competent and credible statements of exposure to air pollutants during service. Both of these opinions have some probative value, and the Board finds that the evidence as to nexus is in equipoise and reasonable doubt must be resolved in favor of the Veteran. As such, and resolving all reasonable doubt in the Veteran’s favor, a nexus is established, and the Board finds that entitlement to service connection for COPD is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to Service Connection for a Lumbar Disability The Veteran contends that he has a lumbar spine disorder that is related to his military service. Specifically, he reported that he injured his back on numerous occasions during service and has received care consistently since he was discharged. Applying the benefit of the doubt, the Board finds that the elements of entitlement to service connection for lumbar disability have been met. With respect to current diagnosis, a private physician noted in January 2020 that the record first documented lumbar spine pathology in 1988, at which point the Veteran was diagnosed with degenerative disc disease with left sciatic root irritation. The examiner further noted that a computed tomography (CT) scan from January 2017 revealed marked degenerative changes of the lower lumbar spine. Additionally, the December 2020 VA examiner concluded that the Veteran was initially diagnosed with degenerative disc disease in 1988 and x-rays from May 2019 revealed the presence of advanced degenerative disc changes at L4-L5. This evidence demonstrates that the first element of service connection has been satisfied. With regard to in-service incurrence, the Veteran maintains that he injured his back on numerous occasions during service. He reported that he first injured his back and leg in 1953 and required crutches for four weeks. He also reported that he hurt his back while transporting field wire in Germany in 1954. He testified that he passed out and was hospitalized for several days. He further testified that he was placed on a light duty work restriction after the incident. The Board notes that the Veteran is competent to report symptoms and observable events within the realm of his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470-471 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Furthermore, the Board finds no reason to doubt the credibility of these statements. The Veteran’s DD Form 214 confirms that he was stationed in Germany during service and there is no evidence to contradict his reports. Accordingly, the Board finds that the Veteran’s competent and credible lay statements sufficiently establish the in-service incurrence element of this claim. The remaining question is whether there is a nexus between the Veteran’s in-service injuries and his current lumbar disability. Additionally, the Board notes that the record contains both a negative and positive opinion addressing a nexus. In January 2020, a private physician, offered a positive nexus opinion, concluding that it is at least as likely as not that the origin of the Veteran’s lumbar disability is a direct result of the injury sustained in service. In support of this conclusion, she noted the Veteran’s reports of a back injury in 1954 while stationed in Germany, but the initial diagnosis is unclear because his service treatment records are unavailable. She acknowledged that lumbar spine pathology was first noted in 1988. She also acknowledged that he had numerous low back pain exacerbations following his separation from service. However, she reasoned that the medical literature is clear that 20 percent of people affected by acute low back pain will progress to chronic low back pain and most patients who experience activity limiting low back pain go on to have recurrent episodes. Thus, she concluded that the Veteran’s lumbar disability, which has prevented him from participating in the workforce since 1989, is directly the result of his in-service injury from 1954. Conversely, a VA examiner concluded in December 2020 that the Veteran’s lumbar disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner reasoned that there is much anecdotal evidence to the Veteran’s claim, but there are no in-service records to support a finding that the Veteran’s condition is related to service. The Board finds the private examiner’s opinion more probative, it considers the evidence of record, the treatment and symptoms reported, and provided a rationale for its conclusions. The VA examiner did not consider the lay evidence sufficiently, and essentially stated that an opinion could not be rendered based on the absence of treatment records. As a result, the Board finds that the mot probative evidence preponderates in favor of a nexus between the Veteran’s back disability and his active service. Accordingly, the claim for service connection for entitlement to a lumbar disability is granted. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Beech, 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.