Citation Nr: 21022806 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-63 905 DATE: April 19, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) with emphysema is denied. FINDING OF FACT The Veteran’s COPD with emphysema did not manifest in service or for many years thereafter, and the evidence does not show that a current respiratory disability is related to or may be associated with service. CONCLUSION OF LAW The criteria for entitlement to service connection for COPD with emphysema have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty service from January 1960 to January 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO) which, among other things, denied service connection for COPD. In June 2017 the Veteran filed a notice of disagreement (NOD) as to his COPD and in September 2017 the RO issued a statement of the case (SOC). In November 2017 the Veteran timely filed a substantive appeal (via VA Form 9). In April 2019, March 2020, and August 2020 the Board remanded the Veteran’s claim for further evidentiary development, specifically, to request outstanding VA and private treatment records and schedule the Veteran for a VA examination to determine the etiology of his respiratory condition. For the reasons stated in the discussion below, the Veteran was afforded an adequate VA examination and the agency of original jurisdiction therefore substantially complied with the remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). COPD with emphysema A February 2016 private treatment note indicates that the Veteran is diagnosed with pulmonary emphysema. An October 2019 private examiner diagnosed the Veteran with COPD. Thus, a current respiratory disability has been demonstrated. There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. The Veteran contends that his current COPD with emphysema is a result of his exposure to asbestos in service. On the June 2017 NOD the Veteran stated that he was exposed to asbestos while serving on the USS Mullany from 1960 to 1963. The Veteran stated that he was an instrument man and slept on a bunk directly under an air vent which exposed him to asbestos. The Veteran’s DD 214 confirms he served as an instrument man in the Navy aboard the USS Mullany. In June 2017 the Veteran submitted a copy of a law firm’s webpage which noted that an instrument man was a military occupational specialty (MOS) that had a high likelihood of exposure to asbestos. Therefore, the Veteran’s reported event is consistent with the places, types and circumstances of the Veteran's service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Thus, the in-service injury or disease requirement is met. The remaining question is whether a nexus exists between the Veteran's current respiratory disability and an in-service injury or disease. In June 2017 the Veteran submitted a previous Board decision granting service connection for COPD based on exposure to asbestos to support his argument. The Board acknowledges this argument but notes that prior Board decisions will be considered binding only with regard to the specific case decided. See 38 C.F.R. § 20.1303. While “[p]rior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case,” the decision submitted granted service connection for pleural asbestosis and remanded a claim for chronic bronchitis and COPD. Moreover, a VA examiner had provided a positive nexus opinion which indicated that “current pleural asbestosis is a direct consequence of his military involvement with asbestos contaminated environment.” These factual differences between the submitted case and the instant case lead the Board to conclude that the submitted Board decision does not reasonably relate to this case and need not be considered further. In October 2019 and May 2020 two separate VA examiners opined that the Veteran’s pulmonary condition is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Previous Board decisions found these opinions inadequate and no further discussion of these opinions is required. An August 2020 VA examiner opined that the Veteran’s COPD with emphysema was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that no emphysema and/or COPD was diagnosed until 2016 while the Veteran separated from the military in 1963. The VA examiner noted that there were no complaints of respiratory symptoms while in service. The VA examiner noted that common risk factors for emphysema are long-term exposure to airborne irritants including tobacco, marijuana, air pollution, and chemical fumes and dust. The VA examiner explained that while asbestos is not specifically excluded in his research, it is not included as a risk factor. The VA examiner noted that the Veteran was not diagnosed with asbestosis or an asbestosis related lung disease and there can therefore be no secondary conditions to this pathology. The VA examiner explained that emphysema is a form of COPD and is most likely due solely to the Veteran smoking tobacco for 50 years. In a September 2020 addendum opinion, the same VA examiner reviewed a study which contemplated the effects of tobacco smoking among asbestos-exposed workers and concluded that the Veteran’s COPD was a result of his tobacco smoking. As the VA examiner explained the reasons for his conclusion based on an accurate characterization of the evidence of record, his opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). In a March 2021 informal hearing presentation (IHP) the Veteran, through his representative, argued that the August 2020 VA opinion along with the September 2020 addendum opinion are inadequate as they did not address a treatise article submitted by the Veteran in a July 2020 IHP which concluded that emphysema is more prevalent in smokers who were exposed to asbestos. In the March 2021 IHP the Veteran’s representative argued that the VA examiner did not comply with the August 2020 Board remand instructions because the VA examiner failed to account for the Veteran’s in-service history of asbestos exposure as a potential contributing causal factor along with not addressing the referenced treatise article. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall, 11 Vet. App. 268 at 271. In this case, the Veteran considered whether the Veteran’s exposure to asbestos contributed to his COPD with emphysema and concluded tobacco smoking is the sole case of the Veteran’s disability. The August 2020 VA examiner did not reference the article mentioned in the August 2020 Board remand instructions. However, the August 2020 VA examiner did reference another article based on the same study that discussed the effects of tobacco smoking among asbestos-exposed workers. The Board notes that an examiner's failure to strictly comply with remand instructions does not necessarily render the examination noncompliant. See Dyment, 13 Vet. App. at 146–47 (examiner's failure to comply with Board's instruction to presume asbestos exposure did not render examination invalid where examiner reviewed the veteran's medical history and made the ultimate determination requested by the Board). Based on the above, the Board finds that the August 2020 VA examination and medical opinion are adequate to decide the claim and reflect substantial compliance with the August 2020 remand instructions. Even though this opinion did not reference the treatise article referenced in the August 2020 Board remand instructions, the VA examiner reviewed another article that referenced the same study, and explained the reasons for his conclusions based on an accurate characterization of the evidence of record, thus substantially complying with the Board’s March 2020 remand instructions. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) (“It is substantial compliance, not absolute compliance, that is required” under Stegall) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). On the Veteran’s January 1963 separation Report of Medical Examination, the Veteran’s chest and lungs were marked normal and his chest X-ray was negative. The Veteran did not indicate that he had continuous respiratory symptoms since service and was not diagnosed with COD until many years later. The absence of any clinical evidence of a respiratory condition for decades after the Veteran's separation from active service combined with the lack of lay statements indicating continuous respiratory symptoms is one factor weighing against a finding that his current disability was present in service or in the year or years immediately after service. 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); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue). The Veteran’s statements may be competent on a variety of matters concerning the nature and cause of disability. However, the dispositive question presented in this case (i.e., whether any relationship exists between the Veteran's current COPD with emphysema and his injury in service) is a question as to internal medical processes which extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau v. Nicholson, 492 F.3d 1372 at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). An opinion as to whether there is a link between the Veteran's current COPD with emphysema and service, where there is no evidence of any respiratory problems for many years after service, is one requiring specialized knowledge and testing to understand the complex nature of the body systems. The Veteran has not indicated that he has such experience and his opinion on the question of nexus is therefore not competent. For the reasons set forth above, the preponderance of the evidence is against the claim of service connection for COPD with emphysema. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, 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.