Citation Nr: 21041659 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-18 535 DATE: July 9, 2021 ORDER Service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD), is denied. FINDING OF FACT The preponderance of the evidence is against finding that a respiratory disability, to include due to COPD, is otherwise related to an in-service injury or disease, to include burn pit exposure. CONCLUSION OF LAW The criteria for service connection for a respiratory disability, to include COPD, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Air Force, to include the Air Force Reserves, which included active service from October 1975 to October 1979; November 1979 to November 1983; August 2006 to December 2006, and, January 2007 to June 2007. The Veteran asserts that he has a respiratory disability due to his 2007 deployment in Iraq, specifically exposure to burn pits. He had 4 months and 8 days of foreign service in Southwest Asia. 06/04/2014 Certificate of Release or Discharge from Active Duty. The Board notes that VA's Public Health website states that waste products commonly disposed of in open burn pits in the Southwest Asia theater of military operations, such as Iraq and Afghanistan, included chemicals, paint, medical and human waste, metal and aluminum cans, munitions and exploded ordnance, petroleum and lubricant products, and plastic, rubber, wood, and food waste. http://www.publichealth.va.gov/exposures/burnpits/. Thus, such exposure is consistent with the circumstances of the Veteran's service, and it is conceded that he was exposed to burn pits. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active 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 current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96. In January 2007, the Veteran complained of a sore throat and runny nose with complaints of a cough. 02/17/2015 STR-Medical at 60. A February 2007 record reflects treatment for sinusitis. Id. at 58. A May 2007 Report of Medical Assessment reflects the Veteran's report that he was hospitalized for three days for double pneumonia. 02/07/2015 STR-Medical at 1. A June 2007 Post-Deployment Health Assessment reflects that the Veteran served in Southwest Asia. With regard to whether he had any symptoms during his deployment, he checked the 'Yes During' boxes regarding 'chronic cough' and 'runny nose.' He asserted that he was exposed to DEET insect repellent applied to skin sometimes, and often exposed to pesticide-treated uniforms, smoke from burning trash or feces, and sand/dust during his deployment. He reported burn pits as a concern about possible exposures during his deployment. 02/17/2015 STR-Medical at 3-6. In June 2015, the Veteran underwent a VA examination wherein COPD was diagnosed. The Veteran reported that in the 2000s he developed "bleeding limitations" (the Board suspects that this is a typographical error and was intended to read as breathing limitations) leading to a diagnosis of COPD. He reported a history of smoking cigarettes on average a pack a day for approximately 35 years. The examiner opined that the Veteran's COPD is less likely than not due to a service-connected condition. The examiner cited the Veteran's smoking history. The examiner stated that the Veteran has a diagnosis of COPD. A review of the literature including the Mayo Clinic for causes of COPD lists smoking cigarettes as a common and likely cause. Therefore, the examiner opined that his exposure to environmental hazards/fire pits while on active duty is less likely the cause of his COPD. Initially, the examiner's opinion was phrased using secondary terminology, rather than direct. Moreover, the examiner did not address whether the Veteran had a respiratory disability due to symptomatology suffered during his 2007 deployment. Thus, an addendum opinion was sought. A March 2018 VA pulmonary consultation reflects that the Veteran was seeking an evaluation of burn pit exposure; he reported serving in Iraq in 2007 and being exposed to burn pits for 6 months. He reported that he smoked for 35 years and quit 6 years prior. The assessment was that he is an ex-smoker with COPD claiming burn pit exposure. It was indicated that he has significant respiratory symptoms and reduced exercise tolerance that is mainly COPD related (due to smoking) rather than burn pit exposure. The examiner indicated that a 2011 New England Journal of Medicine (NEJM) article on constrictive bronchitis due to burn pit exposure described a patient with normal PFTs and no emphysema on CT chest. The diagnosis was made with VATS lung biopsy. In this Veteran's case he had a significant smoking history with emphysema seen on CT chest. PFTs showed very severe obstruction, air trapping and severe reduce DLCO and scooping of flow volume loop. He is on BREO and Spiriva which is optimal for his stage of COPD. Another examining physician consulted reviewed the CT scan which indicated considerable emphysema. The physician stated that this is most likely due to cigarette smoking and is not a radiographic finding attributed to burn pit exposure. The physician stated that to the best of his knowledge there is no data that burn pit exposure amplifies or exacerbates the effect of coexisting cigarette smoking. 07/08/2019 CAPRI at 105-09. In October 2019, an addendum opinion was sought. The examiner reviewed and summarized the medical evidence of record. The examiner cited to medical literature regarding COPD. The examiner stated that the available medical evidence shows the Veteran was a long-term smoker prior to his diagnosis of COPD. The medical literature notes that cigarette smoking is the number one risk factor for the development of COPD. The examiner opined that his COPD is less likely than not (less than 50 percent probability) incurred in or related to his military service and any exposures while deployed to Iraq. The examiner opined that the Veteran's COPD is more likely than not (50 percent or greater probability) related to his long-term history of cigarette smoking. The examiner acknowledged the Veteran experiencing acute episodes of sinusitis during service, and the examiner noted that it was treated and resolved with treatment prior to deployment in 2007. Additionally, he underwent surgical intervention prior to deployment for treatment for a deviated septum. While deployed, he underwent treatment for an acute case of sinusitis that resolved. The examiner stated that there is no evidence available showing ongoing issues with chronic sinusitis; this is not a current diagnosis. The examiner acknowledged his treatment for acute bronchitis and pneumonia prior to deployment in 2006. The examiner stated that this was an acute infection that resolved; there is no evidence to indicate a nexus or link that his 2007 deployment created a chronic condition. There is no current diagnosis of chronic bronchitis or pneumonia. The examiner also referenced the March 2018 pulmonary consultation which reflected that he has significant respiratory symptoms and reduced exercise tolerance that is mainly COPD related (due to smoking) rather than burn pit exposure. The examiner opined that it is less likely than not that his current COPD is due to his 2007 deployment to Iraq. The Board accepts the collective opinions of the June 2015 and October 2019 VA examiners as highly probative medical evidence on the subject, as such was based on review of medical records on file, to include the service treatment records, and contains a detailed rationale for the medical conclusions and the October 2019 opinion cites to medical literature. See Boggs v. West, 11 Vet. App. 334 (1998). As the collective opinions were based on a review of the applicable record, the Board finds such opinions are probative and material to the Veteran's claim. See Owens v. Brown, 7 Vet. App. 429 (1995). Moreover, on VA pulmonary evaluation, the treating physicians concluded that his COPD is due to smoking cigarettes and not consistent with a condition due to exposure to burn pits. The Board acknowledges that the Veteran is competent to describe respiratory symptoms during service and following service and acknowledges his lay statements and testimony at the Board hearing. While the Veteran is competent to report having experienced respiratory symptoms and competent to attest to his exposure to burn pits, he is not competent to provide diagnoses in this case nor determine the etiology of the diagnosed disability. Based on the Veteran's lay assertions, opinions were sought which were negative. While the Veteran believes he has COPD due to service, to include exposure to burn pits, the preponderance of the evidence weighs against finding that his COPD is due to service and such exposures. The Veteran is not competent to provide a nexus opinion regarding this issue. The issue is medically complex and requires knowledge of pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377; see Kahana v. Shinseki, 24. Vet. App. 428 (2011). In conclusion, the most probative, competent evidence is against a link between COPD and service. Because the preponderance of the evidence is against the issues, reasonable doubt does not arise, and service connection is denied. See 38 U.S.C. § 5107(b). Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.