Citation Nr: 21041891 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-15 803 DATE: July 10, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is granted. FINDING OF FACT It is at least as likely as not the Veteran's COPD is the result of exposure to toxic chemicals and solvents while working in plastics and rubber shops during his military service as it is the result of his chronic smoking. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for his entitlement to service connection for his COPD. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1964 to March 1970. This appeal to the Board of Veterans' Appeals (Board) is from a February 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of this claim during a videoconference hearing in May 2019 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. The Board subsequently, in September 2019, remanded this claim back to the RO (Agency of Original Jurisdiction (AOJ)) for additional medical comment concerning the cause of the Veteran's COPD especially in terms of whether related or attributable to toxic exposures during his military service versus his documented history of chronic smoking. As will be discussed, because it is as likely as not the Veteran's COPD is due to one versus the other, or both, the Board is resolving this reasonable doubt in his favor (in terms of it being at least partly, if not entirely, due to his service) and granting rather than denying his claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to service connection for COPD is granted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence also can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. The Board's prior September 2019 remand of this claim explained that a VA examiner had determined the Veteran's COPD since an obstructive rather than restrictive lung disease, is not the result of his alleged exposure to asbestos during his service. Moreover, since he had a history of smoking for many years, that was determined to be a more likely cause of his COPD since precedent opinions of VA's General Counsel have discussed the cause-and-effect correlation between chronic smoking and the eventual development of certain disorders including COPD. See VAOPGCPREC 2-93 (Jan. 13, 1993) and VAOPGCPREC 19-97 (May 13, 1997). And, indeed, as the Board also explained, for a claim, as here, filed on or after June 9, 1998, there is an express prohibition against granting service connection for any disability resulting from chronic smoking, even if the smoking originated during the Veteran's time in service when not an addiction during his service. 38 U.S.C.A. § 1103; 38 C.F.R. § 3.300. The Veteran additionally contends, however, that his COPD is the result of unprotected exposure to toxic chemicals, solvents and dust while stationed aboard the USS Sperry and USS Proteus. And, in support of this posited correlation, he had submitted a July 2019 statement from his treating private physician. This private physician confirmed the Veteran has COPD and indicated that, while it is impossible to know for certain whether it was caused by his exposure to solvents and dust in service or by his smoking, it is at least as likely as not related to his exposures in service. The Board's September 2019 remand of this claim was to have a VA examiner consider those additionally alleged exposures during the Veteran's service (since the prior VA compensation examiner had not), also to consider that supporting medical opinion from the Veteran's private treating physician. And, while the Board acknowledges the additional February 2020 VA medical opinion since obtained on remand conversely concluded that it is less likely than not the Veteran's COPD was caused by his service including when considering those additional exposures, the evidence supporting this posited correlation is as probative (meaning as competent and credible) as the evidence against this notion. This most recent VA examiner surmised that, while it is possible the Veteran's exposures in service may have added to his risk of developing COPD, his 20-year history of smoking is at least as likely as not the cause of his COPD. So, on the one hand, that VA examiner conceded the increased risk of the Veteran sometime later, after service, developing COPD owing to the exposures in service (the initial diagnosis of this disease was in 2014 or thereabouts). But, ultimately, that VA examiner cited the history of chronic smoking as at least as likely as not the cause of the COPD. This opinion has an element of equivocality in it since this VA examiner used the words "possible" and "may" when conceding the increased risk of the Veteran later developing COPD because of the exposures during his service, which precedent cases have indicated is akin to also or just as well saying "possibly not" or "may not have". See, e.g., Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Winsett v. West, 11 Vet. App. 420, 424 (1998). A doctor's opinion phrased in these equivocal or speculative terms is an insufficient basis for an award of service connection. Obert v. Brown, 5 Vet. App. 30 (1993); see also Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). But all of that said, an etiological opinion must be viewed in its entire context and not characterized solely by the medical professional's choice of words. See Perman v. Brown, 5 Vet. App. 237, 241 (1993); Lee v. Brown, 10 Vet. App. 336, 338 (1997). Here, though, what is still troubling by that VA examiner's opinion is that he used the incorrect legal standard of "at least as likely as not" when indicating the source or cause of the Veteran's COPD being his chronic smoking rather than this being "more likely than not" the source or cause of his COPD. Consequently, when considering all opinions provided on this determinative issue, it is at least as likely as not the Veteran's COPD is due to the exposures during his service as it is due to his chronic smoking. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) ("a [V]eteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."); see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). Thus, this claim for service connection for COPD is granted. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Baronofsky 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.