Citation Nr: 21028605 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 20-04 453A DATE: May 11, 2021 ORDER Entitlement to service connection of a lung condition, diagnosed as chronic obstructive pulmonary disease (COPD) with emphysema is denied. Entitlement to service connection of a lumbar spine condition is denied. Entitlement to service connection of a scar, status-post lipoma removal, is granted. FINDINGS OF FACT 1. The Veteran's COPD with emphysema is less likely than not related to any incident of active service, to include smoke inhalation during firefighting services aboard USS ORISKANY in 1966. 2. The Veteran's lumbar spine arthritis is less likely than not related to any incident of active service; it did not manifest during or within one year of separation from service; it is not caused or aggravated by his service-connected shoulder. 3. It is at least as likely as not that the Veteran's scar, status post lipoma removal, is related to active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD with emphysema are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for a scar, status-post surgical removal of a lipoma, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1963 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). As a matter of procedural background, the herein addressed issues came before the Board in November 2020, at which point they were remanded for additional development. They are now returned to the Board. Also remanded at that time were claims of service connection of a right shoulder disability and squamous cell carcinoma. Those two appeals were subsequently granted by the RO, and they are no longer part of this appeal. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Regardless of whether a disability is listed as "chronic" for presumptive purposes, a continuity of symptoms from the time of service is a factor to consider in assessing a claim. A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. 1. Entitlement to service connection of a lung condition, diagnosed as chronic obstructive pulmonary disease (COPD) with emphysema The Veteran seeks service connection of COPD with emphysema, which he asserts is due to his service as a firefighter during active duty service. Affording the Veteran the benefit of the doubt, the Board finds that the claim should be denied. As an initial matter, the Board acknowledges the Veteran's diagnosis of COPD with emphysema. The Board also recognizes that the Veteran served as a firefighter, and was present aboard USS ORISKANY (CV-34) during a significant fire in 1966. His records also identify two subsequent episodes of spontaneous pneumothorax and an episode of bronchitis thereafter. Turning to the question of whether the present diagnoses are related to his service, the Veteran has submitted two private opinions on his behalf. An opinion from A Dr. S. found that the condition was likely due to smoking cigarettes, and less likely due to service, although it provided no rationale or discussion of the evidence of record. A separate opinion by a Dr. F., dated in March 2020, found that the Veteran's current lung/pulmonary disability was at least as likely as not the result of his in-service smoke inhalation. In support of this conclusion stated that USS ORISKANY, during the fire, was at sea, and the Veteran did not receive official medical attention until he was evaluated later for a shoulder/back trauma. Although the Veteran did smoke for many years, the fact that he had two spontaneous pneumothoraces shortly after the smoke exposure during the fire makes the effect of the smoke exposure from the fire a possible major contributor to the Veteran's severe lung disease that he currently experiences. In September 2020, a VA examination was conducted and the examiner stated that the Veteran's lung conditions were less likely than not related to his firefighting duties and in-service spontaneous pneumothoraces and bronchitis. In support of this, the examiner stated that the Veteran is a life-long smoker which is widely and pathophysiologically accepted as the most common cause of emphysema and COPD. While he suffered a lung illness in 1966, this would not be the typical onset of either disabilities which require long-term insult to the lungs, rather than an isolated exposure or illness. An additional VA opinion was obtained in March 2021. The examiner reviewed the evidence and concurred with the September 2020 opinion. In support of this, the examiner stated that there is no evidence of a respiratory injury during the events pertaining to the ORISKANY fire. Any injury to the lungs at the time of such an event would have been clearly evident. He was not treated for smoke inhalation. While he had separate episodes of chest pain in June 1967, this was an isolated rib injury. The Veteran also had separate pneumothoraces after the fire, but found them unrelated, stating that this is not supported by medical fact because the Veteran did not complain of lung injuries at the time of the fire. Hence the "spontaneous" nature of the subsequent lung illnesses. Further, even if the pneumothoraces were related to the fire, they would have no bearing on the Veteran's COPD as they are separate entities and the spontaneous pneumothorax has not recurred since in 1967. The Veteran has a greater than 110 pack-year history. This is overwhelmingly the most likely cause of the Veteran's COPD. There is no evidence of scarring that can be attributed to the ORISKANY fire. He did not suffer respiratory compromise at the time, and responded well to treatment for his pneumothoraces and bronchitis in service without recurrence since 1967. Rather the Veteran's COPD with emphysema is more likely due to his two-lifetime-pack-year smoking history. The Board finds the VA opinions, and the opinion of Dr. S. more persuasive in this matter. While Dr. S. did not provide a detailed rationale for his conclusion, he did attribute the condition to the Veteran's long-term smoking habit. This opinion was further confirmed by both VA examiners. Those opinions were rendered by medical specialists in contemplation of the complete medical record, and applied the facts of this case to the evidence of record using known medical principles in detailed rationale statements. The Board does acknowledge Dr. F.'s opinion, however, finds it less persuasive than the other opinions combined. Particularly, although he finds a link between the Veteran's smoke exposure in 1966 and his subsequent pneumothoraces, this link is thoroughly contradicted by the March 2021 examiner, who discusses this possibility, and concludes that even if such a link were existent, it would still not likely be a cause of the Veteran's subsequent COPD and emphysema. Further, this opinion is contradicted by not one, but three other physicians, including a private physician employed by the Veteran himself. Those opinions are far more detailed and discuss the issue in more depth than the opinion of Dr. F. The Board further notes that the Veteran's emphysema and COPD were not diagnosed in service or any time shortly thereafter. There is an extended period ot time between separation and his ultimate diagnosis. He has not shown nor has he argued that he has experienced symptoms from the time of service. Thus, a continuity of symptoms is not established. Finally, the Board acknowledges the Veteran's own assertions that his COPD and emphysema are related to smoke inhalation in service. While lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of his lung conditions, especially in light of the VA examiner's and his own first private examiner's conclusions to the contrary and the fact that the evidence fails to demonstrate the onset of either disability in service. See id. In short, when weighing the evidence, the Board finds that the opinions of the VA examiners and the Veteran's first private examiner outweigh any favorable opinions or evidence. As such, the Board finds no nexus between the Veteran's current lung/pulmonary disabilities and service, and further finds that the claim should be denied. . In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 2. Entitlement to service connection of a lumbar spine condition The Veteran seeks service connection of a lumbar spine condition. The Board finds that the claim should be denied. The Board initially notes a present diagnosis of degenerative arthritis of the spine and spinal stenosis. The Veteran's service treatment records indicate an injury in 1966 when a paint can fell on his shoulder and low back. He also had complaints consistent with overuse/strain/muscle spasm in 1968. In support of his claim, the Veteran submitted an opinion by a Dr. S., dated in December 2018. That opinion concluded that the present spine disability is at least as likely as not caused by active service. However, that opinion did not provide any rationale for the conclusion reached, and consisted exclusively on a checkmark on a questionnaire. The Veteran has also submitted an opinion by a Dr. F., dated in March 2020. That opinion included a checkmark on a questionnaire which was unclear and could be attributed to either "at least as likely as not caused by [service]" or "less likely than not caused by [service]." However, a discussion of the facts accompanying the opinion noted age-related osteoporosis without current pathological fractures and lumbar radiculopathy due to both age and overuse. In September 2020 a VA examination was conducted and an opinion was given. The examiner reviewed the Veteran's complete medical history, to include the Veteran's own lay statements of pain since service. He then concluded that the present low back disability was less likely than not due to any incident of active service. In support of this the examiner stated that the conditions the Veteran now experiences are long-term, degenerative conditions, that are not typically linked to an injury as their origin. There are interim examinations when the Veteran did not complain of back pain. And his lumbar pain was not noted until very recently (in fact, he was afforded imaging studies in 2010 following a semi-truck accident and no major abnormalities of the spine were identified). If the Veteran's current disabilities began following his injury in 1966, then the record of pain and imaging findings would have shown such pathology from that time to the present, which they do not. In March 2021, an addendum opinion was obtained in March 2021. The examiner reviewed the entire record and concluded that the present condition was less likely than not related to any incident of active service. In support of this the examiner noted that the Veteran's separation examination was negative for any back complaints of conditions. The Veteran had previously complained of some back pain, so the medical examiner at separation would have known to look for such an issue, but found none. The Veteran's contemporary complaints of back pain were not noted until around 2012, and the Veteran had been involved in a motor vehicle accident two years prior that required x-rays of his spine. Therefore, it is more likely that the Veteran's current low back pain was related to much later trauma or development. Further, the condition was less likely than not caused or aggravated by his shoulder condition. Degenerative spine disease is considered a natural aging process due to normal wear and tear with associated natural disc desiccation. There is no evidence on imaging of a traumatic injury related to service. Over 70 percent of men over the age of 70 will have such a condition, as confirmed by medical treatise evidence. The current shoulder conditions would not and cannot cause or contribute to degenerative joint disease of the spine. They are anatomically separate and the pathophysiologies are different. Further, degenerative joint disease does not pass from one joint to another. To the extent that the Veteran claims chronicity of pain since service, this is not supported by the separation documents, or the lack of medical evidence in the intervening years. Therefore, it is less likely than not that his spine condition had onset during or within a presumptive period of service. The Board finds the evidence of record, particularly the two VA opinions persuasive in this matter. They were rendered by medical specialists in contemplation of the complete medical record, and applied the facts of the case to known medical principles. The Board notes that the VA opinions appear to be supported by the conclusions of Dr. F. While Dr. S. opined in favor of such a link, there is no discussion of how that conclusion was reached. Indeed, the opinion itself consists of no more than a checkmark on a questionnaire. As such, the opinion of Dr. S. is of very limited probative value, and is not adequate to contradict the opinions of the VA examiners and Dr. F. The Board does recognize that the Veteran has reported symptoms of pain since service. To the extent that the Veteran's condition falls under the diagnostic umbrella of "arthritis," consideration as a presumptive disability is appropriate. However, while the Veteran is certainly competent to report observable symptoms such as pain, once the basic threshold of competency is met, the Board must consider credibility. In this case, the Veteran's current assertions are not supported by the evidence of record. He denied any low back issues at separation and no ow back conditions were noted. There is no evidence of any type of back complaints in the medical record until nearly 40 years after separation from active service. Given the fact that this assertion does not square with the medical evidence of record, and the time of the creation of his testimony, and his own self-interest, the Board finds this testimony regarding continuity to be of limited credibility for purposes of establishing service connection at this time. See Caluza v. Brown, 7 Vet. App. 498 (1995) (giving factors to consider when assessing the credibility of lay statements and evidence). The evidence does not support that the present arthritic condition was diagnosed in service or manifested to a compensable degree within one year of separation Finally, the Board recognizes the Veteran's own firmly held belief that his condition is related to service. While lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of his lumbar spine disability, especially in light of the VA examiner's and his own private physician's conclusions to the contrary and the fact that the evidence fails to demonstrate the onset of any such back pain in service. See id. In sum, the evidence does not support a finding that the Veteran's low back disability had onset within a presumptive period, it is not related to any incident of active service, and there is no evidence to support a conclusion that his low back disability is caused by his shoulder condition. As such, the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 3. Entitlement to service connection of a scar, status-post lipoma removal, is remanded. Finally, with regard to the scar the Veteran has following the surgical removal of a lipoma, the Board finds that service connection should be granted. Specifically, the evidence includes a Dr. W.F. who opined that the lipoma was likely caused by an incident in service where a paint can fell on his back. The Board remanded this appeal in November 2020, stating that no opinion was of record which fully assessed the Veteran's lipoma, which was removed in 2010. In fact, an opinion was of already record from September 2020, where the examiner gave a brief, but negative opinion. In the end, the Board determines that equipoise has been shown, and service connection should be granted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Pryce, Counsel