Citation Nr: 21029771 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-22 394A DATE: May 17, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his COPD is at least as likely as not related to in-service exposure to coal dust and toxic fumes. CONCLUSION OF LAW The criteria for establishing service connection for COPD are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASON AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Air Force from November 1961 to August 1962. The Veteran's military occupational specialty (MOS) was heating specialists, furnace tender. See DD 214. This matter comes before the Board of Veterans' Appeals (Board) from a September 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). An April 2017 Supplemental Statement of the Case (SSOC) continued the denial of service connection. A February 2019 Board decision denied service connection for COPD. The Veteran appealed to the Court of Appeals for Veterans Claims (CAVC). In a memorandum decision, the Court vacated the Board decision remanded the matter for further development. In February 2021, the Board remanded the matter for a new examination which considers learned treatises submitted and explained the implications between the exposures of risk factors and a diagnosis. See February 2021 Board Remand. That development is now complete in substantial compliance with remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for COPD The Veteran contends that his COPD is related to service. More specifically, he contends that his current COPD was caused or aggravated by exposure to coal dust and toxic fumes while working as a heating specialist and furnace tender. See June 2016 VA Form 21-4138, Statement in Support of Claim. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active duty service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." 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) (citing Gilbert, 1 Vet. App. at 54). As to the first element of Shedden, for service connection there must be a current disability. Per the Veteran's September 2016 VA examination, he was diagnosed with COPD in August 2015. Thus, the Board finds that the Veteran's claim satisfies the first element for service connection. As to the second element of Shedden, for service connection there must be an in-service incurrence or aggravation of a disease or injury. Per the Veteran's service treatment records (STRs), he complained of frequent respiratory infections. See STR dated April 27, 1962. The Veteran has stated that after a shift of shoveling coal into a WWII-era furnace without protection, he was frequently sneezing and coughing up black soot and/or blowing it out into a handkerchief. See September 2016 Respiratory Conditions, Disability Benefits Questionnaire (DBQ), pg. 1; see also Correspondence, dated April 23, 2017. The Veteran's STRs note that he was treated for bronchitis, coughing and persistent wheezing while in service. Here, a review of the Veteran's military personnel records confirm that he worked around furnaces as his MOS was as a heating technician and furnace tender. Therefore, the Board concedes that the Veteran was exposed to coal dust and other fumes while he was in active service. Accordingly, the Veteran's claim satisfies the second element of Shedden for service connection. The third element of Shedden for service connection requires a nexus between the Veteran's current disability and the in-service disease or injury. The record contains medical evidence weighing in favor of and against the Veteran's claim as to whether his currently diagnosed COPD is related to either of his in-service events, namely exposure to coal dust and toxic fumes. Weighing against the Veteran's claim is a September 2016 VA examination. In providing a negative nexus opinion, the examiner reasoned that the Veteran was not diagnosed with COPD while in service, did not have treatment for COPD while in service, and because the Veteran had a history of smoking which is the leading cause of COPD. However, the examiner did not discuss COPD may have a long asymptomatic period, the learned treatises submitted regarding environmental exposures and COPD, or lay statements regarding these exposures. Further, the 2016 examiner ignored notations STRs of treatment for bronchitis, wheezing, and upper respiratory issues while in service. For this reason, the Board finds that the September 2016 opinion is based on an inaccurate factual premise and is entitled to no probative weight. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (finding a medical opinion based on an inaccurate factual premise has no probative value.) In March 2021, a VA medical opinion stated that the Veteran's COPD is less likely than not caused by inservice injury event or illness. The rationale for the 2021 VA negative medical nexus opinion was that the Veteran reported a history of smoking, and that smoking is a principle risk factor for COPD. Weighing in the Veteran's favor is the fact that the March 2021 VA examiner also opined that it is at least as likely as not that the coal dust and toxic fume exposures the Veteran experienced contributed to his COPD. The examiner reasoned that there is conflicting evidence about the duration and amount the Veteran's tobacco exposure. The examiner added that without a clear knowledge of the amount of exposure to tobacco, a determination of which exposure caused a greater risk could not be assessed in this specific case. The examiner addressed the occupational study of the general population indicated that environmental exposures to chemical fumes, dusts, and other lung irritants account for 10 to 20 percent cases of COPD. The 2021 VA examiner stated that COPD is a disease that has a long asymptomatic period; symptoms may not be revealed until many years after exposure. For these reasons, the examiner opined that "after a review of all the conflicting medical records, it is my opinion that it is at least as likely as not that the Veteran's current COPD has been aggravated by his exposures during service." The examiner added that his opinion was based upon the Veteran being a credible witness to his experiences in service and the fact that COPD cases can be due to environmental exposures. Upon review, the Board finds evidence is at least in equipoise. The Veteran submitted studies linking coal dust, toxic fumes, and environmental hazards to COPD. Additionally, STRs document treatment for bronchitis and wheezing while in service. The Veteran also provided credible, competent, and consistent statements regarding frequent upper respiratory difficulties due to exposures inservice. The Board finds that his statements have been "consistent with the time, place, and circumstances of his service." Finally, the March 2021 examiner provided a positive opinion linking exposures to the Veteran's later-diagnosed COPD. (Continued on the next page) Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for COPD is warranted. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McKenzie, 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.