Citation Nr: 21041558 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 15-30 191 DATE: July 9, 2021 ORDER Entitlement to service connection for bilateral leg lymphedema is denied. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is granted. FINDINGS OF FACT 1. The Veteran's bilateral leg lymphedema is not related to an in-service injury, event, or disease, and did not have its onset during service. 2. The evidence is at least evenly balanced as to whether the Veteran's COPD is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral leg lymphedema have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for COPD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1979 to July 1999. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia which, inter alia, denied service connection for right and left leg lymphedema, and COPD. In February 2015, the Veteran filed his notice of disagreement, was issued a statement of the case in June 2015, and in August 2015 perfected his appeal to the Board. In December 2019, the Veteran testified at a Travel Board Hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. In February 2020, the Board remanded the Veteran's claims for VA examinations to determine the etiology of the Veteran's bilateral leg lymphedema and COPD. In January 2021, the RO denied the Veteran's claims, informing him in a supplemental statement of the case. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Bilateral Leg Lymphedema and COPD The Veteran testified that he suffers from bilateral leg lymphedema as a result of standing on concrete, blacktops, and aircraft ramps for 20 years while working as an aviation structural mechanic in the service. He stated that he was provided new boots approximately every 6 months. He reported having to climb on aircraft and jump down from aircraft, and run from the line shack to the flight line approximately 50 to 60 yards, 4 to 6 times a day. The Veteran also testified that he was exposed to the exhaust from jets and the aircraft painter in the hangar bay, noting that the paint used was a carcinogen. He stated that he took breathing tests about 2 times a year and was always at the lower limit. He reported that he still had breathing problems when he left service. The Veteran's DD 214 notes that his military occupational specialty (MOS) was as a System Organizational Maintenance Technician. The Veteran's service treatment records do not note any issues regarding lymphedema or COPD, and his March 1999 medical examination report upon discharge is normal. December 2013 private treatment records note the Veteran was diagnosed with lymphedema and COPD. A November 2014 letter from the Veteran's private physician noted that the Veteran had been diagnosed with COPD and daytime obstructive sleep apnea syndrome, and treated with CPAP therapy and medications. In a February 2020 letter, the Veteran's private physician stated that he has treated the Veteran for 7 years, and opined that the Veteran's COPD is related to his military service considering his military occupational specialty, and contact with fumes, and petroleum during service. October 2020 private medical records reflect a diagnosis of COPD, and indicate pulmonary vasculature within normal limits. A January 2021 disability benefits questionnaire (DBQ) reflects that the Veteran's COPD had its onset in 2013 and has since worsened. The Veteran reported shortness of breath and exercise intolerance, and indicated that his COPD requires use of low dose corticosteroids and inhaled medications. The examining physician opined that it is less likely than not (less than a 50 percent probability) that the Veteran's COPD was caused by exposure to pollutants and carcinogenic chemicals, as the Veteran reports he began smoking at the age of 18, and continues at the age of 60. Thus, the physician indicated that smoking is more likely than not the cause of the Veteran's COPD as it is well known that cigarette smoke is a toxic substance that is both damaging to the lungs, and a carcinogenic substance. A separate January 2021 DBQ reflects a diagnosis of venous stasis disease with lymphedema of the right and left lower extremities. The DBQ indicated that the Veteran's disease had its onset in 2010 with the Veteran reporting experiencing swelling in his legs which has since worsened. The examining physician opined that it is less likely than not (less than a 50 percent probability) that the Veteran's bilateral leg lymphedema was caused by an in-service event or injury to include the Veteran's account of performing strenuous tasks in boots during service, as this type of physical activity is not causally related to the development of lower extremity lymphedema. The physician stated that the Veteran has 2 primary risk factors for the development of lower extremity lymphedema, obesity, and a history of cigarette smoking. The preponderance of the evidence is against finding that the Veteran's bilateral leg lymphedema had its onset in, or is otherwise related to service. The January 2021 physician opined that the Veteran's bilateral leg lymphedema was less likely than not (less than a 50 percent probability) caused by an in-service injury, or event, and provided a thorough rationale regarding the etiology of the Veteran's bilateral leg lymphedema to support his conclusion, considering the Veteran's reports of tobacco use since service, as well as his account of performing strenuous activities in boots during service and onset approximately ten years previously. The January 2021 physician's opinion is thus afforded significant probative weight, and there is no medical opinion to the contrary in the evidence of record regarding the etiology of the Veteran's bilateral leg lymphedema. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges the Veteran's assertion that his current bilateral leg lymphedema was caused by wearing boots for several years during service as an aviation structural mechanic. While the Veteran is competent to provide testimony or statements relating to symptoms or facts of events that he has observed and are within the realm of his personal knowledge, he is not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The record does not show, nor does the Veteran contend, that he has specialized education, training, or experience that would qualify him to render a diagnosis or a medical opinion on this matter. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the issue in this case is outside the realm of common knowledge of a lay person because it involves a complex medical issue that goes beyond a simple and immediately observable cause-and-effect relationship. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377, n.4 (Fed. Cir. 2007). For the foregoing reasons, the weight of the evidence is against a relationship between the Veteran's service as an aviation structural mechanic and his current bilateral leg lymphedema. Therefore, the claim for entitlement to service connection for bilateral leg lymphedema must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As for the Veteran's claim for service connection for COPD, the evidence is at least evenly balanced as to whether his COPD is related to exposure to fumes and pollutants during service. The Veteran has provided competent and credible evidence that he was exposed to pollutants during service, which is consistent with the circumstances of his service as an aviation structural mechanic. Additionally, the Veteran's private treatment records reflect a diagnosis of COPD. Therefore, the first two elements for service connection have been satisfied, and the dispositive issue is whether there is a nexus between the two. The January 2021 physician opined that the Veteran's COPD was less likely than not (less than a 50 percent probability) caused by exposure to pollutants and more likely caused by the Veteran's history of smoking cigarettes, providing a thorough rationale to support his conclusion. However, in February 2020, the Veteran's private physician opined that the Veteran's COPD was related to his military service considering his military occupational specialty, and contact with fumes and petroleum during service. While the Veteran's private physician's rationale was not extensive, reading his opinion as a whole and in the context of the evidence of record, he found that the nature of the Veteran's military service and events that occurred therein, and subsequent symptoms, made it likely that they had resulted in his current COPD. 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). Thus, there is both a positive and negative medical nexus opinion of record as to the etiology of the Veteran's COPD. Therefore, the evidence is at least evenly balanced as to whether the Veteran's COPD is related to exposure to pollutants in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for COPD is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED