Citation Nr: 21028754 Decision Date: 05/12/21 Archive Date: 05/11/21 DOCKET NO. 12-16 103 DATE: May 12, 2021 ORDER Service connection for chronic obstructive pulmonary disease (COPD) and restrictive lung disease, as secondary to service-connected arteriosclerotic heart disease, coronary artery disease, and congestive heart failure (heart disability), is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's COPD and restrictive lung disease are caused by his service-connected heart disability. CONCLUSION OF LAW The criteria for service connection for COPD and restrictive lung disease, as secondary to service-connected heart disability, are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1957 to June 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Historically, the claim on appeal (service connection for COPD and restrictive lung disease as secondary to a service-connected disability) has been adjudicated under 38 U.S.C. § 1151; however, the Board, herein and addressed below, has granted service connection under 38 C.F.R. § 3.310 in accord with the evidence of record. See Lynch v. Wilkie, 30 Vet. App. 296, 304 (2018) (holding that the Board is required to consider theories of entitlement to benefits that are either raised by the claimant or reasonably raised by the record). In this regard, after the Veteran raised the theory of secondary service connection, in April 2019, the Board requested a medical opinion on the theory, and the AOJ denied service connection for COPD as secondary to a service-connected disability in a March 2021 supplement statement of the case (SSOC). Therefore, as a full grant of the benefits sought by the Veteran is granted herein, there is no prejudice in adjudicating the claim under 38 C.F.R. § 3.310. In June 2015, the Veteran presented testimony before the Board. In a September 2017 letter, the Board notified the Veteran that the Veterans Law Judge who conducted his June 2015 hearing was no longer employed by the Board. Accordingly, the Veteran was advised of his right to another optional Board hearing. In October 2017, the Veteran notified the Board that he did not wish to appear at another Board hearing. In July 2015, the Board remanded the appeal for additional development. In January 2018, the Board, in part, denied entitlement to compensation under 38 U.S.C. 1151 for COPD. The Veteran appealed the January 2018 Board denial to the United States Court of Appeals for Veterans Claims (Court). In a December 2018 Order, the Court granted a Joint Motion for Remand (Joint Motion), vacating the January 2018 Board decision and remanding it for action consistent with the terms of the Joint Motion. In April 2019, the Board, in pertinent part, remanded the issue of entitlement to compensation under 38 U.S.C. 1151 for COPD for additional development, consistent with the Joint Motion. Service Connection on a Secondary Basis The Veteran claims that his COPD and restrictive lung disease are secondary to his service-connected heart disability. See, e.g., Veteran's attorney memorandum (February 2021). Service connection is warranted for disability proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310 (a), (b). For the reasons below, service connection for COPD and restrictive lung disease, on a secondary basis, is warranted. The Veteran's service-connected disabilities include arteriosclerotic heart disease, coronary artery disease, and congestive heart failure (heart disability). The medical evidence of record shows that the Veteran has been diagnosed as having COPD and restrictive lung disease during the appeal period. See VA respiratory examination report (November 2016). Notably, there have been conflicting opinions as to whether the Veteran has or had COPD. See VA medical opinion (July 2020). For example, in a July 2020 VA medical opinion, the physician indicated that the Veteran did not have COPD, but rather a different lung disability, such as sarcoidosis. To this extent, the Veteran's VA treatment records note on multiple occasions that the Veteran had symptoms of COPD and was diagnosed as having COPD. For example, a July 2009 VA pulmonary note indicates that the Veteran underwent a pulmonary function test (PFT) in 2008 and that it was suggestive of restriction with obstruction. A July 2014 VA treatment record shows that the Veteran had obstructive lung disease, COPD, with persisting dyspnea. Additionally, the November 2016 VA examiner reviewed the Veteran's claims file, interviewed him, and diagnosed COPD. Lastly, in a December 2018 opinion, a private physician, Dr. E.A., indicated that he reviewed the Veteran's claim file, that he had 45 years of experience in the practice of medicine, and found that the Veteran had been diagnosed as having COPD and restrictive lung disorder. In sum, the Board finds that the VA treatment providers and physicians that found that the Veteran had COPD during the appeal period are the most probative and competent evidence of record as to whether the Veteran has COPD, as the VA treatment providers and physicians based their findings on a review of the claims, a physical examination of the Veteran, and their medical expertise. In viewing the evidence as a whole and resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran has been diagnosed as having COPD and restrictive lung disease during the appeal period. Therefore, the remaining question is whether the Veteran's COPD and restrictive lung disease are caused or aggravated by his service-connected heart disability. In this case, the medical evidence shows that there is a relationship between the Veteran's COPD and restrictive lung disease. For instance, a July 2009 VA pulmonary note indicates that the Veteran's PFT that suggested a restriction with obstruction was likely due to cardiomegaly. Additionally, two physicians found that the Veteran's COPD and restrictive lung disease are caused by his service-connected heart disability. Specifically, in a November 2016 VA examination report, the VA physician indicated that he reviewed the Veteran's claims, interviewed him, and found that his COPD and restrictive lung disease were a direct result of his heart disability. The November 2016 VA examiner reasoned that patients with current lung problems are a direct result of a heart disability. In a December 2018 private opinion, a private physician, Dr. E.A., indicated that he reviewed the Veteran's claim file and that he had 45 years of experience in the practice of medicine. The private physician opined that the Veteran's COPD and restrictive lung disease were a direct result of his heart disability. In the private physician's rationale, he indicated that in March 2007, the Veteran was hospitalized in April 2007 and March 2007 to remove excess fluid around his heart and was later diagnosed as having COPD and restrictive lung disease in March 2007. In support of the Veteran's claim, in February 2021, he submitted a medical article (A Propensity-Matched Comparison of Pleurodesis or Tunneled Pleural Catheter for Heart Failure with Recurrent Pleural Effusion), which states that patients with severe heart failure often have recurrent pleural effusion that produce dyspnea and shortness of breath. The Board recognizes that there are negative opinions of record that found that the Veteran's COPD and restrictive lung disease were not caused or aggravated by his service-connected heart disability. See, e.g., VA opinion (January 2021). The negative opinions are afforded little probative value if any, as the opinions did not address the positive nexus opinions of record or the Veteran's submitted article that suggested a relationship between a lung disorder, such as pleural effusion, and heart failure. See Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994) (the Board may not simply adopt a medical examiner's opinion that fails to discuss favorable evidence of record but must instead account for that favorable evidence with an adequate statement of reasons or bases). Although the positive opinions of record that found that the Veteran's COPD and restrictive lung disease were caused by his service-connected heart disability were brief, the opinions are entitled to high probative value, as the conclusions were based on a review of the Veteran's claims file and on the physicians' medical expertise. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Cf. Hogan v. Peake, 544 F.3d 1295, 1297-98 (Fed. Cir. 2008) (even if flawed because stated uncertainly, an opinion from a licensed counselor regarding the etiology of a claimant's psychological disorder must be considered as "evidence" of whether the disorder was incurred in service). Importantly, the December 2018 private physician, Dr. E.A., indicated that he had 45 years of experience in the practice of medicine. In sum, the Board finds that at a minimum, the evidence is at least in equipoise as to whether the Veteran's COPD and restrictive lung disease is caused by his service-connected heart disability. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, service connection for COPD and restrictive lung disease, as secondary to service-connected heart disability, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Castillo, 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.