Citation Nr: 21042455 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 05-37 228 DATE: July 13, 2021 ORDER Entitlement to service connection for a respiratory disability is denied. FINDING OF FACT The Veteran's respiratory disability did not originate in service or until years thereafter, is not otherwise etiologically related to service, and was not proximately due to or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection, to include on a secondary basis, for a respiratory disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1961 to June 1964. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that this matter has been advanced on the docket pursuant to 38 C.F.R. § 20.900(c). The appeal was last remanded by the Board in December 2020 for additional development. A review of the claims file shows that there has been substantial compliance with the Board's prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a respiratory disability The Veteran has contended that he has a respiratory disability that was caused by exposure to fumes during service or that is secondary to his service-connected chronic sinusitis with deviated septum and allergies. Factual Background A May 1961 report of medical history indicates that the Veteran did not have ear nose, or throat trouble, asthma, nor shortness of breath. A November 1963 service treatment record notes that the Veteran complained of a productive cough and was diagnosed with an upper respiratory infection. The record also notes that the Veteran smoked 10 cigarettes a day. An April 1964 report of medical history indicates that the Veteran did not have asthma, shortness of breath, nor a chronic cough. An April 1990 VA treatment record notes that the Veteran had shortness of breath with congestion. A May 1990 VA treatment record notes that the Veteran had a history of asthma and emphysema. A February 1991 VA treatment record notes that the Veteran's last asthma attack was 6 months prior and that the Veteran had a cough with sputum and occasional wheezes. The VA provider recommended that the Veteran stop smoking. An August 1991 VA treatment record documents the Veteran's complaints of shortness of breath, cough with sputum, wheezing, chest pains, nasal congestion, sinus headache, and fever. The Veteran was given oxygen which caused his wheezing to cease and him to breathe much better. The Veteran had a 40-pack year history of smoking and had 5 episodes of pneumonia in the past 15 years but a chest x-ray was normal. A March 1992 VA treatment record notes that the Veteran claimed that removal of his nose polyps caused blood to drip into his throat causing an asthma attack. A March 1992 VA treatment record notes that the Veteran claimed that removal of his nose polyps caused blood to drip into his throat causing an asthma attack. A July 1992 VA treatment record notes that the Veteran had a history of asthma, a 45-year history of smoking 1 pack of cigarettes per day and worked as a truck driver. The record notes that the Veteran had presented a week prior with an asthma exacerbation. A March 2000 VA treatment record notes that the Veteran had a history of chronic bronchitis and had been told he had asthma too. The Veteran reported that he developed shortness of breath, tightness, and wheezing. He also had sleep apnea and used a continuous positive air pressure machine (CPAP). A May 1995 VA treatment record notes that the Veteran had a history of smoking 2 packs of cigarettes per day but had reduced his use to 1 pack per day for the past 4 years. A December 1997 VA treatment record notes that the Veteran complained of a cold and asthma for the past week. A June 2000 VA treatment record notes that the Veteran had a history of sleep apnea and asthma. The Veteran complained of wheezing, shortness of breath, occasional cough, and difficulty bringing up phlegm. The Veteran also reported that he was a truck driver and affected by fumes, humidity, and pollen. The Veteran requested a letter to submit to his employer for a change of workplace because he thought his asthma would be better if he could work inside in a cleaner environment. He reported that his asthma was bothered most by fumes from the trucks. An October 2001 VA treatment record notes that a CT scan revealed two nodules in the Veteran's right lower lung. A July 2002 VA treatment record again notes that the Veteran had nodules in his right lower lung and notes that two additional, smaller nodules were found in January and another nodule in the left lower lobe. The left lower lobe nodule did not show any significant interval change. The records note that the Veteran did not have any new complaints though. Another July 2002 VA treatment record notes that the Veteran had COPD and asthma. An October 2002 VA treatment record notes that the previously seen nodules were not seen currently and that the Veteran did not have emphysema. A January 2003 VA treatment record notes that the Veteran had a primary history of asthma, COPD, and lung nodules but that a September 2002 CT scan showed no nodules. A May 2003 VA treatment record notes that the Veteran had a significant smoking history having smoked 80 packs per year until the Veteran quit smoking 4 years prior. The record also notes that the Veteran had asthma, evanescent nodules, and sleep apnea. Lastly, the record notes that the September 2002 CT scan showed no nodules. An August 2003 VA treatment record notes that there was no significant change in the Veteran's nodules noted on the September 2001, September 2002, and July 2003 CT scans. An April 2004 VA treatment record notes that the Veteran had a history of asthma and small nodules with no change over the past two years. The Veteran also complained of a cough for the past 7 months but did not have shortness of breath. A July 2004 VA treatment record notes that the Veteran required an inhaler twice per day for exacerbation of wheezing and shortness of breath. In a July 2004 statement in support of his claim, the Veteran asserted that he contracted a respiratory disability during service because of exposure to fumes. A September 2004 VA treatment record notes that the Veteran's nodules were stable over a 2-year period, that the Veteran was a former 100 pack year smoker, and that the Veteran had a persistent cough with sputum in recent months. The Veteran was afforded a VA examination in September 2004 and the corresponding VA examiner's report was dated October 2004. The October 2004 VA examiner stated that the Veteran was service-connected for an "asthma condition". During the VA examination, the Veteran reported that he had coughing all the time, especially with whitish mucous. He also reported dyspnea on exertion and could only walk about one flight of stairs before he was short of breath. The Veteran also reported that he experienced asthma attacks twice a year. A February 2012 VA treatment record notes that the Veteran's COPD was exacerbated apparently after an upper respiratory tract infection that was not treated. The Veteran reported that he had congestion and was with asthma for several months. He also reported that he could hear wheezing daily. A July 2012 VA emergency department record notes the Veteran presented with shortness of breath for 1 day and had a history of emphysema and bronchiectasis. The record notes that the Veteran was seen several times for acute shortness of breath over the last 10 days and that the Veteran reported that he had run out of inhalers. The Veteran was afforded another in-person VA examination in May 2019. The VA examiner noted diagnoses of asthma, emphysema (COPD), and pulmonary nodules. The VA examiner noted the Veteran's medical history including that he had been diagnosed with asthma in the early 1970s, did not have recent flares in the past year requiring a physician visit, and that he used an inhaler. The VA examiner further noted that the Veteran was diagnosed with COPD in 2011. Lastly, a history of pulmonary nodules was noted as seen on imaging since 2003 and that the Veteran's pulmonary nodules had remained stable. First, the VA examiner determined that the Veteran's asthma, emphysema (COPD), and pulmonary nodules were each less likely than not related to his active duty service. The VA examiner explained that service treatment records documented symptoms of cough, chest pains, and congestion but that those symptoms were not specific to asthma, emphysema, nor pulmonary nodules and were not sufficient to diagnose any of those disabilities. The VA examiner further noted that the service treatment records indicated that the Veteran was diagnosed with pneumonia and upper respiratory infections. Next, the VA examiner determined that the Veteran's asthma, emphysema, and pulmonary nodules were not secondary to the Veteran's service-connected chronic sinusitis with deviated septum and allergies. The VA examiner explained that chronic sinusitis, deviated septum, and allergies would not progress to any of these respiratory disabilities and were not risk factors for developing any of these respiratory disabilities. Instead, the VA examiner specifically noted that the Veteran's emphysema was secondary to his 40 pack-year smoking history. A June 2017 private treatment record notes that the Veteran developed asthma at a "young age" and that he also had COPD. A December 2019 private treatment record notes that the Veteran had sinus congestion and post-nasal drip at times that triggered coughing and slight wheezing with shortness of breath. The record also notes that the Veteran has chronic bronchitis with post-nasal drip. At the time of treatment, the Veteran had a cough but not chest tightness, shortness of breath, wheezing or stridor. The record further notes that the Veteran quit smoking 36 years prior but that he previously had a significant smoking history. The Veteran was afforded another VA examination in April 2020. The April 2020 VA examiner determined that a baseline level of severity of the Veteran's respiratory disability could not be determined because the medical evidence was insufficient to support a determination of a baseline level of severity. The VA examiner further determined regardless of an established baseline that the Veteran's respiratory disability was not at least as likely as not aggravated beyond its natural progression by his service-connected sinus disability. The VA examiner noted that the Veteran had diagnoses of asthma, COPD, and lung nodules. The VA examiner further noted that available medical records indicated that that the Veteran's asthma appeared to have acute exacerbations sometime in 2003 onwards. The VA examiner explained that it was medically recognized that asthma manifested in exacerbations. The VA examiner further noted that the Veteran's COPD occurred in exacerbations. The VA examiner stated that "asthma and allergies are conditions that tend to coexist and interact" and also that "sinusitis, or in general, respiratory tract infections tend to cause asthma exacerbations." The VA examiner then attempted to conclude with an incomplete opinion statement. A May 2020 VA emergency department record notes that the Veteran complained of a productive cough with green sputum, increased bronchospasm, and malaise. The record further notes that the Veteran had COPD and that the Veteran most likely had an exacerbation of his COPD and an acute upper respiratory infection/bronchitis. The record notes that the Veteran used an inhaler at home with mild relief. May 2020 and June 2020 private treatment records again note that the Veteran had chronic bronchitis with post-nasal drip. The May 2020 record also notes that the Veteran had been to the emergency department at the VA 3 times requesting oxygen and was taking steroids intermittently. Both records further noted that the Veteran had a cough but was negative for chest tightness, shortness of breath, wheezing, stridor, respiratory distress, or rales. Again, it was noted that the Veteran had a significant smoking history but had stopped smoking 35 years prior. An August 2020 VA treatment record notes that the Veteran reported being hospitalized for a COPD exacerbation. A September 2020 private treatment record notes that a chest x-ray showed a stable chest with prominent interstitial markings. A March 2021 VA treatment record notes that the Veteran had grossly stable pulmonary nodules and grossly similar emphysema and chronic interstitial lung changes. An addendum VA opinion was obtained in March 2021 based on a review of the available records and in conjunction with a telephone interview with the Veteran. The VA examiner's report specifically stated that the May 2019 and April 2020 VA examiner's reports had been reviewed as well. The VA examiner determined that it was less likely than not that the Veteran's asthma or emphysema was secondary to the Veteran's service-connected chronic sinusitis with deviated septum and allergies. The VA examiner explained that chronic sinusitis, deviated septum, and allergies do not progress to asthma, emphysema, or pulmonary nodules nor were they risk factors for developing asthma, emphysema, or pulmonary nodules. Instead, the VA examiner opined that the Veteran's emphysema was secondary to his 40 pack-year smoking history. The VA examiner also determined that the baseline level of severity for the Veteran's asthma, emphysema, and pulmonary nodules was ascertainable and that the current severity of each disability was not greater than baseline. In regard to his nodules, the VA examiner explained that the September 2003 CT scan had been reviewed and that a March 2021 CT scan was also obtained which showed grossly stable pulmonary nodules. In regard to his emphysema, the VA examiner explained that an April 2011 CT scan of the chest had been reviewed and that a March 2021 CT scan was obtained which continued to evidence only mild emphysema. In regard to the Veteran's asthma, the VA examiner explained that the Veteran's daily use of a home nebulizer and inhalers had not changed and that the Veteran did not require frequent emergency room visits for exacerbation of his asthma. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Secondary service connection may be granted when a disability is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 447-48 (1995). The Board acknowledges that the evidence of record regularly notes that the Veteran was diagnosed with asthma, pulmonary nodules, and emphysema/COPD. Accordingly, the Veteran has met the first prong in establishing direct or secondary service connection. At the outset, the Board finds that the Veteran's July 2004 assertion that he contracted a respiratory disability due to in-service exposure to fumes lacks credibility. Service treatment records are negative for any evidence of complaints, treatment or a diagnosis related to exposure to fumes. Furthermore, service treatment records specifically noted in May 1961 and April 1964 that the Veteran did not have asthma or shortness of breath. The Veteran's Military Occupational Specialty in service was light weapons infantry with no combat history, which the Board finds does not establish that exposure to fumes was consistent with the circumstances of service. Moreover, the Board strongly emphasizes that the Veteran reported in June 2000, more than 30 years after separation from active duty service and years before filing his claim for compensation, that his asthma was exacerbated by truck fumes at work and that he requested a letter to provide to his employer requesting that he be permitted work inside in a cleaner environment instead. In other words, there is no credible evidence of fume exposure in service, but there is a credible account of post-service occupational exposure to fumes. Accordingly, the Board finds that the Veteran's account of exposure to fumes in service, which underlies his belief that his current disability is related to service, lacks credibility. To the extent the Veteran's claimed disorder is related to fume exposure, the Board finds it more likely that such exposure occurred after service, including from the Veteran's own account of occupational exposure. Accordingly, the Board finds that the Veteran's July 2004 statement in support of his claim lacks credibility. Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). Not only is the Veteran not credible, the Board also finds that the Veteran is not competent to provide direct and secondary etiology opinions. The Veteran is competent to report when he began experiencing respiratory symptoms; however, as a layperson lacking in medical training and expertise, he cannot provide a competent opinion on matters as complex as the diagnosis and etiology of his symptoms. As such, his lay assertions regarding a diagnosis and causation of a respiratory disability are of no probative value. Further, even if his opinion regarding the etiology of a current diagnosis of a respiratory disability was afforded some probative value, it is far outweighed by the opinions provided by the VA examiners who have greater training and expertise than the Veteran in diagnosing and assessing a respiratory disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). To determine the cause of such a condition requires medical training and expertise that the Veteran does not possess. 38 C.F.R. § 3.159 (a)(1), (2) (2018). Accordingly, there is no competent evidence of a link between the Veteran's respiratory symptoms and his active service or his service-connected sinus disability. The Board acknowledges that the June 2017 private treatment record documented that the Veteran developed asthma at a "young age", however, no age was specified, and there is no indication that the clinician based the observation on anything other than the Veteran's own statement. The Board finds that the preponderance of the evidence shows that the Veteran's asthma began after service. The Board notes that service treatment records were negative for asthma and that post-service treatment records documenting asthma were not available until 1990. The May 2019 VA examiner's report further noted that the Veteran's asthma began in the 1970s. The evidence further shows that the Veteran's pulmonary nodules and emphysema/COPD began much later in 2003 and 2011, respectively. See May 2019 VA examiner's report. With regard to the years-long evidentiary gap in this case between the Veteran's 1964 separation from active duty service and the earliest manifestations of asthma in the 1970s, pulmonary nodules in 2003, and COPD in 2011, the Board notes that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Again, the Board notes that service treatment records are negative for any respiratory complaints, treatment, or diagnosis except for an isolated November 1963 upper respiratory infection. The May 2019 VA examiner considered this isolated, in-service complaint but determined that symptoms of cough, chest pain, and congestion were not specific to asthma, emphysema, nor pulmonary nodules, and did not suffice in this particular case to establish that the current respiratory disability is related to service. The Board finds that this evidence shows that the Veteran's respiratory disability was not incurred in nor directly related to his active duty service. Moreover, as noted above, there is no credible, competent, or probative lay evidence to support an award based on direct service connection. Accordingly, entitlement to service connection for a respiratory disability based on direct service connection is denied. Next, the Board has considered whether service connection based on a secondary theory of entitlement is warranted but finds that it is not. The Board notes that the Veteran has been awarded service connection for low back disability and chronic sinusitis with deviated septum and allergies. The evidence does not show, and the Veteran has not contended, that his low back disability caused or aggravated his respiratory disability. The question is whether the Veteran's service-connected chronic sinusitis with deviated septum and allergies (the "service-connected sinus disability") caused or aggravated his respiratory disability. Initially, the Board finds that the October 2004 VA examiner's report is inadequate as it was based on the incorrect factual premise that the Veteran had already been awarded service connection for asthma. The Board also affords low probative value to the April 2020 VA examiner's report because it contained confused statements regarding the effects of a sinus disability on an asthma disability and provided an incomplete nexus opinion. Instead, the Board affords greater probative value to the May 2019 and March 2021 VA examiner's reports. Both the May 2019 and March 2021 VA examiner concluded that the Veteran's asthma, emphysema/COPD, and pulmonary nodules were not caused by the Veteran's service-connected sinus disability. The VA examiner explained that chronic sinusitis, deviated septum, and allergies did not progress to and were not risk factors for developing asthma, emphysema, or pulmonary nodules. Both reports further concluded that the Veteran's extensive smoking history caused his emphysema/COPD. This finding is support by the evidence of record which regularly documented the Veteran's significant smoking history. See November 1963 service treatment record; February 1991, August 1991, July 1992, May 1995, May 2003, and September 2004 VA treatment records; and June 2017, May 2020, and June 2020 private treatment records. Moreover, the March 2021 VA examiner's report further concluded that the Veteran's service-connected sinus disability did not aggravate the Veteran's respiratory disabilities. The VA examiner determined a baseline level of severity for each disability and explained that the baseline level had not increased for the Veteran's asthma, pulmonary nodules, or emphysema/COPD. This is consistent with the September 2020 private treatment record which showed a stable chest x-ray and the August 2003 VA treatment record which noted no significant pulmonary nodule changes on the September 2001, September 2002, and July 2003 CT scans. The Board finds that without an increase in the baseline there was no aggravation. The Board does acknowledge the July 1992 VA treatment record which noted that the Veteran had an exacerbation of his asthma and the July 2004 VA treatment record which noted that the Veteran had exacerbation of wheezing and shortness of breath which required use of an inhaler twice daily. However, the Board emphasizes that no cause for the exacerbations were noted and that the May 2019 and March 2021 VA examiners' reports and the May 2020 VA treatment record all indicate that use of an inhaler was part of the Veteran's normal treatment plan for his asthma. Furthermore, February 2012 and May 2020 VA treatment records also note exacerbations in the Veteran's COPD, however, these exacerbations appear to have been isolated events and caused by upper respiratory infections. The Board finds that the preponderance of the evidence shows that the Veteran's respiratory disabilities were not aggravated. However, even if the Veteran's respiratory disabilities were aggravated, the evidence does not show that the Veteran's service-connected sinus disability caused such exacerbation. The Board again emphasizes that the June 2000 VA treatment record documented the Veteran's complaint that his asthma was instead exacerbated by exposure to truck fumes at work decades after his separation from active duty service. The Board finds that neither direct nor secondary service connection is warranted for any of the Veteran's respiratory disabilities. Therefore, the claim must be denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Palombi 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.