Citation Nr: 21025826 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-60 873 DATE: April 29, 2021 ORDER Service connection for chronic obstructive pulmonary disease (COPD) is denied. Service connection for emphysema is denied. Service connection for asthma is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that COPD began during active service; was manifested to a compensable degree within any applicable presumptive period; or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that emphysema began during active service; was manifested to a compensable degree within any applicable presumptive period; or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that asthma began during active service; was manifested to a compensable degree within any applicable presumptive period; or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for emphysema are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for asthma have not met. 38 U.S.C. §§ 1131, 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 August 1962 to October 1963. The Veteran passed away in December of 2020, and the Veteran's surviving spouse was substituted as the Appellant in order to complete the appeal for accrued benefits purposes. This appeal comes before the Board of Veterans’ Appeals (Board) from a June 2017 rating decision that reopened a previously denied claim of entitlement to service connection for a lung condition, but, denied the claim on the merits. The Veteran’s notice of disagreement (NOD) was received in July 2017. The RO issued the statement of the case (SOC) in September 2017. The Veteran appealed to the Board in November 2017. By way of procedural history, in an August 2011 rating decision, the RO denied the Veteran’s original claim of service connection for a lung condition based on a finding that the Veteran’s current respiratory condition was not related to in-service pneumonia. In an October 2012 rating decision, the RO reopened the previously denied claim of service connection for a lung condition, but confirmed and continued the previous denial of service connection for a lung condition (claimed as COPD) because the additional evidence failed to show a nexus between the current respiratory condition and any in-service lung infection; the Veteran did not appeal that determination or submit new and material evidence within the one-year appeal period. However, in January 2018, new, and relevant, service treatment records were associated with the claims file. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. §3.156(c)(1). Because the service treatment records added are relevant official service department records that existed and had not been associated with the claims file when VA initially decided the prior claims, the initial claim will be reconsidered without the need for new and material evidence. The Veteran and the Appellant appeared for a Board hearing before the undersigned Veterans Law Judge in April 2019. A transcript of the testimony is associated with the claims file. In August 2019 the Board remanded the case to the RO for further development and adjudicative action. During the pendency of the appeal, and before the case was returned to the Board on appeal, the RO issued a rating decision in September 2020 that granted service connection for recurrent bronchitis and recurrent pneumonia with bibasilar atelectasis and assigned a noncompensable rating, effective July 27, 2010. As noted above, the Veteran passed away in December of 2020, and the Veteran's surviving spouse was substituted as the Appellant in order to complete the appeal for accrued benefits purposes. See January 2021 VA correspondence. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active 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 so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases may also be established based upon a legal “presumption” by showing that the disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected condition. 38 C.F.R. § 3.310. 1. Entitlement to service connection for COPD. 2. Entitlement to service connection for emphysema. 3. Entitlement to service connection for asthma. Prior to his death, the Veteran asserted that he had COPD, emphysema and asthma that were manifested as a result of his period of active service. Specifically, the Veteran contended that his chronic lung disabilities were due to the pneumonia he had during service which he stated left him with compromised lungs. See November 2017 VA Form 9. As noted above, service connection was granted for the Veteran’s recurrent bronchitis and recurrent pneumonia in a September 2020 rating decision. The question for the Board is whether the Veteran had COPD, emphysema and/or asthma that began during service or is at least as likely as not related to an in-service injury, event, or disease to include the Veteran’s service-connected recurrent bronchitis and recurrent pneumonia. The Board concludes that, while the Veteran had current diagnoses of COPD, emphysema and asthma, and evidence shows that the Veteran had an occurrence of in-service respiratory problems, the preponderance of the evidence weighs against finding that the Veteran's diagnosed COPD, emphysema or asthma began during service and continued since then; and, the evidence does not show that these disabilities are otherwise related to an in-service injury, event, or disease to include the Veteran’s service-connected recurrent bronchitis and recurrent pneumonia. The Veteran’s medical treatment records show that he had recurring pneumonia (consistently reflected in VA treatment records from 2014 to 2020), COPD (see September 2012, June 2017 and February 2020 VA examinations reflecting a COPD diagnosis), emphysema (see February 2020 VA examination), and asthma (see August 2011 VA examination, March 2012 private treatment note, May 2019 private medical opinion). The Veteran’s overall respiratory disability involved a compromised pulmonary status with a chronic elevated left hemidiaphragm (see July 2009 private medical records from Dr. C.C) leading to chronic lung infections variously diagnosed as upper respiratory infections (URIs), bronchitis, bronchopneumonia, pneumonitis (see private medical records from Dr. C.C. from 2008-2010). The Veteran’s STRs reflect that he had respiratory problems in service. The Veteran had an examination and report of medical history at enlistment in August 1962. Those records reflect that he was clinically assessed as having no significant lung abnormalities at enlistment, and this assessment was based in part on chest x-rays taken. In mid-October 1962, the Veteran presented with sinus tenderness and rhonchi in the left lung base. He was admitted to the hospital with a diagnosis of URI (upper respiratory infection). The discharge diagnosis was acute bronchitis, resolved, and the Veteran was returned to duty. However, three days later, on October 23, 1962 the Veteran returned to the clinic with complaints of pain in the left chest and dizziness. The clinician noted that the Veteran appeared acutely ill. A chest x-ray was negative, and the impression was URI residuals. However, the following day, the Veteran presented with a recent history of pneumonia. He was admitted to the hospital with fever, cough, left chest pain and chills. Rhonchi were present at the anterior base of the left lobe and a chest x-ray dated October 24, 1962 indicates left lower lobe pneumonitis. An October 24, 1962 progress note indicates that the Veteran began coughing three days earlier, and then he developed pain, and chills the following day. He presented with pleuritic pain in the left lung and he was coughing green phlegm. The impression was bacterial pneumonia and rule-out bronchiectasis. The progress report also notes that the Veteran had been hospitalized 12 days prior (approximately October 12) for 1 week with a URI (upper respiratory infection). He felt well on discharge, but, as noted above, began coughing a couple days later, leading to his admission on October 24, 1962. Additional progress notes reflect that while the Veteran’s chest pain had subsided by October 26, 1962, he continued to have reddish brown sputum and rhonchi in the right base on October 27, 1962. The STRs further reflect that the Veteran was hospitalized for 5 days and discharged on November 5, 1962. The diagnosis was viral pneumonia left lower lobe. A November 2, 1962 chest x-ray was normal, but there was an indication that the Veteran was still improving from bacterial pneumonitis in the left lower lobe. The Veteran continued to receive treatment through November 5, including another chest x-ray that returned negative. The Veteran was diagnosed with URIs in January and April 1963. The Veteran reported chest pain, nausea and weakness. The Veteran’s chest was assessed as clear in April and June 1963, and chest x-rays taken in August and September 1963 were within normal limits. The Veteran’s October 1963 discharge examination indicates that the Veteran had pneumonia in October 1962, but that the condition resolved without complications. However, on his Report of Medical History at discharge, the Veteran continued to report chest pain and chronic cough. Chest x-rays taken at exit were negative and the Veteran’s sinuses, lungs, and chest were all evaluated as normal. The Veteran explained his recollection of his in-service pneumonia in his November 2017 appeal to the Board. The Veteran said that 2 months into bootcamp he became very ill and went to sick call for 2 weeks. Because he didn’t have a fever over 101, he was given medicine and sent back to duty. The Veteran said that one morning he woke up in the hospital and the nurse told him that the medical staff thought he could have died. The Veteran stated that he was hospitalized for 3 weeks or a month because his lungs hadn’t cleared up yet. The Veteran stated that after he was discharged from the hospital, he was sent to another Army base where he was housed in substandard conditions (very cold, and barracks were heated by coal which caused pollution inside), which he thought was compromising his lung function and capacity. The Veteran reported substantially the same recollection in his April 2019 Board hearing. The Veteran and Appellant have testified that he has suffered from chronic respiratory infections/pneumonia since service (see March 2017 lay testimony submitted by Appellant, November 2017 appeal, April 2019 Board hearing transcript). Several medical opinions are of record. An August 2011 VA examiner concluded that the Veteran most likely had one uncomplicated respiratory infection while in service, with no apparent complications. The examiner noted that all in-service chest x-rays were normal. The examiner concluded that the bronchopneumonia noted on the Veteran’s discharge physical was probably an error committed by the examining physician, because the normal chest x-ray result was inconsistent with that diagnosis. The examiner also opined that the x-ray results suggested that the Veteran’s diaphragmatic elevation did not begin in service. The examiner stated that the in-service history reported by the Veteran was not consistent with the Veteran’s STRs and concluded that it was less likely than not that the Veteran’s current respiratory issues were related to or caused by his respiratory problems in service. A September 2012 VA examiner opined that the Veteran’s current COPD was less likely than not incurred in service or caused by the Veteran’s respiratory problems in service. The examiner explained that the Veteran’s April 1963 URI follow-up in service was normal, and there were no residuals or sequalae. Further, chest x-rays in service were normal. Additionally, the examiner noted that the Veteran did not begin experiencing problems with shortness of breath until many years after service and did not require treatment for respiratory problems until the last 10 or 12 years. The examiner opined that the Veteran’s COPD was less likely than not incurred in service or caused by the Veteran’s respiratory problems in service. The examiner explained that the Veteran’s October 1962 pneumonia had resolved without residuals or sequalae, which would not cause the Veteran’s post-service COPD, recurrent URIs, and pneumonia. The examiner opined that the Veteran’s COPD was most likely due to the Veteran’s history of smoking. A private doctor who treats the Veteran, Dr. C.C., submitted a July 2018 letter in which he opined that the Veteran had severe pneumonia in service with a delay in treatment, which likely resulted in scarring of the lungs. Dr. C.C. opined that the resulting scarring of the lung probably contributed to the Veteran’s recurrent pneumonia infections but notably did not opine on the etiology of the Veteran’s COPD, emphysema and asthma. As discussed in the August 2019 remand, the Board determined that the August 2011 and September 2012 VA examinations were incomplete. The Board remanded the appeal for another VA examination. The Veteran underwent a VA examination in February 2020 and several medical opinions were provided regarding the nature and etiology of the Veteran’s various lung disabilities. The first opinion recounts the Veteran’s history of respiratory problems in service, notes his diagnoses of recurrent pneumonia, COPD, and atelectasis, and states that the “Veteran’s current lung condition is at least as likely as not incurred in or caused by the claimed in-service injury, event or illness.” The examiner stated that the Veteran was a smoker which contributed to him developing COPD but also noted that he had no respiratory disease prior to entering service. It is unclear from this opinion which lung disability the examiner is relating to service. Although, even if the opinion was attempting to link the Veteran’s COPD, emphysema and/or asthma to service, it lacks an adequate rationale as to why those disabilities in particular are related to service. The same examiner provided a separate opinion on the etiology of the Veteran’s COPD. The examiner noted that the Veteran was a smoker while in service and stated that the primary cause of COPD is tobacco smoke as noted in medical literature. The examiner wrote a detailed explanation of COPD, its interaction with other respiratory diseases and the major risk factors. The examiner concluded that the Veteran’s COPD is less likely than not incurred in or caused by the claimed in-service injury, event or illness. Several additional VA medical opinions were obtained from a different VA physician in August 2020. The VA physician opined that the Veteran’s COPD and emphysema are less likely than not related to the respiratory conditions in service. The physician similarly wrote a detailed explanation of COPD, its interaction with other respiratory diseases and that the primary risk factor for COPD and emphysema is exposure to tobacco smoke. The physician stated that recurrent pneumonia and infectious bronchitis exposure has not been medically or objectively linked to COPD and emphysema. The physician noted that the Veteran’s history is positive for decades of tobacco abuse and stated that this is almost certainly the cause of the Veteran’s COPD and emphysema. The physician explained that he found no evidence to overlook such a tremendous amount of medical research and attribute the COPD and emphysema to pneumonia or any of the Veteran’s other in-service lung problems. In a separate August 2020 opinion, the physician stated that all of the Veteran’s pulmonary limitations, findings and treatment as well as the need for Oxygen are due to his COPD and emphysema which are linked and inseparable. The physician stated that the COPD and emphysema are causing the Veteran's limitations in pulmonary function and that the severe FVC and FEV decrease are consistent with advanced COPD and emphysema which are a result of his smoking. Several additional VA medical opinions were obtained from a different VA physician in September 2020. The physician clarified that the Veteran’s inhaled medications (Dulera, Albuterol) are used for treatment of his COPD and emphysema and the antibiotics are used to treat his bronchitis and pneumonia. With regard to asthma, the physician noted that the Veteran’s Report of Medical History and clinical examination on separation were negative for asthma. The physician also stated that medical record review was negative for ongoing clinical treatment of asthma from the time of discharge to the present. Thus, the physician concluded that the Veteran’s asthma is less likely than not related to active service. The Board finds the August 2020 VA medical opinion to be the most probative evidence of record as to whether the Veteran's current COPD or emphysema are related to the Veteran's active service. The examiner was fully aware of the Veteran's in-service respiratory problems and post-service medical history, and he based his opinion on the evidence and cited to medical literature to support his conclusions. Based on the examiner's opinions, the Veteran's COPD and emphysema are more likely than not due to smoking, noting in pertinent part, that smoking is the primary risk factor for COPD and emphysema, and this conclusion is based on a tremendous amount of medical research. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). With regard to asthma, although the Veteran’s STRs establish that he had respiratory problems during service, which included pneumonia, the STRs are negative for any complaints, treatment or diagnosis related to asthma. Post-service treatment records only rarely mention asthma and the September 2012, June 2017 and February 2020 VA examination reports do not reveal a diagnosis of asthma. The February 2020 VA examiner stated that “many people with COPD mistakenly think they have asthma” and “[t]he distinction between asthma and COPD is made on the basis of the symptoms, smoking history, and whether airflow limitation is reversible with bronchodilators at spirometry.” Notably, the August 2020 VA physician stated that all of the Veteran’s pulmonary limitations, findings and treatment as well as the need for Oxygen are due to his COPD and emphysema which are linked and inseparable. The September 2020 VA physician clarified that the Veteran’s inhaled medications are used for treatment of COPD and emphysema and the antibiotics are used to treat bronchitis and pneumonia. There exists no competent opinion of record that links the Veteran’s diagnosed asthma to any respiratory condition shown in service or the Veteran’s service-connected recurrent bronchitis and recurrent pneumonia with bibasilar atelectasis. Finally, the February 2020 VA examiner and August 2020 VA physician both stated that the Veteran was a smoker during service and that his smoking was the most likely cause of his COPD. However, due to an act of Congress, service connection cannot be granted for any injury or disease that is attributable to the Veteran's use of tobacco products during military service if the claim for service connection was received after June 9, 1998. 38 C.F.R. § 3.300; see also Kane v. Principi, 17 Vet. App. 97, 101 (2003) (plain language of statute expresses Congressional intent to no longer award service connection for a Veteran's death that results from service-connected disease that was capable of being attributed to the use of tobacco products during the Veteran's service). In this case, the Veteran's claim was received in July 2010. As such, service connection for COPD based on tobacco use that began during service is precluded by law. The Board has also considered service connection for COPD on a secondary basis. See VAOPGCPREC 6-03, 69 Fed. Reg. 25178 (2004). However, the medical evidence does not show, and neither the Veteran nor the Appellant have claimed, that the Veteran’s tobacco use was itself caused by a service-connected disability. As such, service connection for COPD on a secondary basis is not warranted. While Appellant contends that the Veteran’s COPD, emphysema and asthma were caused by his service-connected recurrent pneumonia and respiratory problems during service, neither the Appellant nor the Veteran in this case is competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pulmonology, anatomy, and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Appellant and Veteran because the record does not show that either have the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). (Continued on the next page)   In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Appellant's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). In light of the foregoing, service connection for COPD, emphysema, or asthma is not warranted. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Modesto, Victor 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.