Citation Nr: 21023340 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-21 323 DATE: April 20, 2021 ORDER Service connection for a lung disability, to include emphysema and chronic obstructive pulmonary disease (COPD), is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s lung disability, to include emphysema and COPD, began during active service, or is otherwise related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for service connection for the Veteran’s lung disability, to include emphysema and COPD, are not met. 38 U.S.C. §§ 1110, 1131, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(d). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1966 until his honorable discharge in January 1969, with active military service in Vietnam. He received the Vietnam Service Medal, Vietnam Campaign Medal, Combat Infantry Badge, and the Purple Heart with two Oak Leaf Clusters. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 decision by the St. Paul, Minnesota, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied service connection for emphysema and COPD (claimed as “lung condition”). The Veteran requested a videoconference hearing at a local VA office within his VA Form 9, substantive appeal to the Board, but later withdrew his request in a phone call with a VA representative in June 2019. Evidentiary Standards In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 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). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128‒29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. Analysis First element: A current disability As to the first element of service connection, a current disability, the Veteran’s medical records indicate he has a diagnosis of emphysema and COPD. Therefore, the first element is satisfied. Second element: An in-service event, injury, or illness, or aggravation thereof As to the second element of service connection, an in-service event, injury, or illness that occurred while on active duty, the Veteran has credibly asserted that he was struck by shrapnel that punctured his lung during his active military service in Vietnam. Applicable to this case is 38 U.S.C. § 1154(b), which “reduce[s] the evidentiary burden for combat veterans with respect to evidence of in-service incurrence or aggravation of an injury or disease” by mandating that VA “accept as sufficient proof of service[ ]connection . . . satisfactory lay or other evidence of service incurrence or aggravation” of an injury or disease “if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service.” See Dalton v. Nicholson, 21 Vet. App. 23, 36‒37 (2007); see also 38 C.F.R. § 3.304(d). In other words, section 1154(b) relaxes the evidentiary requirements for establishing an in-service incurrence or aggravation of a disease or injury for combat-related compensation claims if the veteran meets the requirements set forth therein. The Veteran’s awards of the Vietnam Service Medal, Vietnam Campaign Medal, Combat Infantry Badge, and the Purple Heart with two Oak Leaf Clusters, demonstrate he engaged in combat while in Vietnam. His shrapnel injury is consistent with such service even in the absence of formal documentation within his military records. Therefore, the Board finds the second element is satisfied. Third element: A causal link As to the third element of service connection, a causal link between the Veteran’s lung disability and in-service shrapnel injury, the Board concludes the evidence weighs against finding a causal link. The RO provided the Veteran with a VA examination in August 2013 addressing the etiology of his lung disability. The examiner diagnosed the Veteran with emphysema. He opined that the Veteran’s emphysema was less likely than not due to his in-service shrapnel injury. The examiner relied on the Veteran’s statements that he smoked tobacco for the past 45 years, and he smoked 1 to 1.5 packs per day at that time. The examiner reasoned that the Veteran’s chronic smoking is what led to emphysema. The examiner stated, “shrapnel wounds do not cause emphysema.” Absent evidence to the contrary, the Board finds the August 2013 was competent to exam and diagnose the Veteran and to provide a medical opinion addressing the etiology of the Veteran’s lung disability. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (the competence of VA examiners is presumed absent evidence to the contrary). The Board finds the examiner’s overall examination, medical findings, and medical opinion credible and probative. The examiner conducted a thorough in-person examination, relied on accurate facts, considered the Veteran’s relevant medical records, medical history, and lay statements, and provided a well-reasoned medical judgment that connected the facts to his ultimate conclusion. The Veteran told a VA representative he felt he did not receive a fair examination because the examiner’s opinion was not thorough. See April 2016 VA Form 21-0820, Report of General Information. The Board disagrees. The Board notes that examiners have no reasons-and-bases requirement; their opinion is adequate if it rests on correct facts and reasoned medical judgment to fully inform the Board on a particular medical question. Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012). While the August 2013 VA examiner’s opinion is succinct, it is still clear. The main point of the opinion is that a shrapnel injury does not cause emphysema, but smoking does. An examiner is only required to offer rationale that supports his/her opinion after review of the veteran’s medical history. Id.; see also Monzingo v. Shinseki, 26 Vet. App. 97, 105–06 (2012) (finding no clear error when a medical examiner “did not explicitly lay out [her] journey from facts to a conclusion.”). The Board finds the August 2013 VA examiner’s opinion adequate for the reasons already explained. Nonetheless, the RO provided the Veteran with a second VA examination in April 2016. The examiner conducted an examination based on Acceptable Clinical Evidence (ACE). This examination allowed the examiner to review the Veteran’s existing medical records instead of performing an in-person or telehealth examination to complete the examination, expediting the process by eliminating the wait time to schedule and conduct an in-person exam. The examiner noted the Veteran had COPD as of September 2014. The examiner opined that the Veteran’s COPD was less likely than not caused by or a result of a lung puncture while on active duty. The examiner reasoned that the Veteran’s service treatment records showed no diagnosis or treatment for COPD while in service. The examiner noted the Veteran had a long history of smoking based on the information contained within his medical records. The examiner explained that lung trauma, like a puncture, “plays no role in the development of COPD.” Smoking, however, does contribute to the development of COPD. The examiner discussed how “[t]he most important risk factor for COPD is cigarette smoking and the amount and duration of smoking contribute to disease severity.” Absent evidence to the contrary, the Board finds the April 2016 was competent to diagnose the Veteran and to provide a medical opinion addressing the etiology of the Veteran’s lung disability. Cox, 20 Vet. App. at 569. The Board finds the examiner’s overall medical findings and medical opinion credible and probative. The examiner conducted a thorough ACE examination, relied on accurate facts, considered the Veteran’s relevant medical records, medical history, and lay statements, and provided a well-reasoned medical judgment that connected the facts to his ultimate conclusion. The Board has carefully reviewed all evidence of record. The only evidence that is contrary to the August 2013 and April 2016 VA examiners’ opinions is the Veteran’s own report that he was told by a medical professional in service that he would likely develop emphysema as a result of his injury. See October 2012 VA Form 21-4138, Statement in Support of Claim; VA Form 21-0820, Report of General Information. The Board does not doubt the Veteran’s competency to report what he was told by a medical professional in service. See Jandreau v. Nicholson, 493 F.3d 1372, 1377 (Fed. Cir. 2007) (noting general competence of laypersons to relay diagnoses from medical professionals). Nor does the Board doubt the credibility of the Veteran. But, when weighing the Veteran’s statements against two VA medical opinions that have each come to the same medical conclusion about the etiology of the Veteran’s lung disability, the Board finds the VA medical opinions outweigh the Veteran’s statement. The Veteran has identified the medical professional who told him he would develop emphysema as a doctor. The Veteran has provided no further contextual information. He has not identified whether the doctor knew he smoked on a regular basis. He did not identify any medical basis on which the doctor relied to make his prediction. Nor has the Veteran provided a reasonable basis for the Board to conclude that the doctor’s opinion is more probative than the two VA medical opinions, each of which considered the Veteran’s medical history, medical records, military records, and lay statements. At this time, the Board finds the two VA medical opinions are more probative than the Veteran’s statement from a doctor in service. Therefore, the third element is not satisfied because there is no causal link between the Veteran’s shrapnel injury and his lung disability. Lastly, service connection is expressly precluded for any disability related to chronic tobacco use (for claims received after June 9, 1998). See 38 U.S.C. § 1103; 38 C.F.R. § 3.300. In the present case, the Veteran’s claim was received in October 2013. (Continued on the next page)   Accordingly, service connection for a lung disability is not warranted. R.R. WATKINS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.