Citation Nr: 22010791 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 17-32 659 DATE: February 24, 2022 ORDER Entitlement to service connection for a respiratory disorder is denied. FINDING OF FACT The most probative evidence of record does not establish that the Veteran's respiratory disorder is etiologically related to his active duty service, to include exposure to diesel fumes. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1966 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board last remanded the issue on appeal in June 2021 for additional development. Specifically, the Board requested the RO obtain updated VA and non-VA treatment records and arrange for the Veteran to undergo a VA examination to determine the nature and etiology of the Veteran's respiratory disorder. A review of the record shows substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In April 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. Entitlement to service connection for a respiratory disorder. The Veteran seeks service connection for a respiratory disorder. See July 2015 VA Form 21-526. The Veteran contends that he has a respiratory disorder as a result of exposure to environmentally unsafe conditions in service while serving onboard the U.S.S. Bang; specifically, he contends that he was repeatedly exposed to diesel fumes. See June 2017 Notice of Disagreement (NOD); June 2017 VA Form 9; April 2021 hearing transcript. Generally, 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; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct-incurrence basis for a disability, there must be (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). With regard to the first element of service connection, a current disability, the evidence of record demonstrates the Veteran has been diagnosed with multiple respiratory disorders, to include chronic obstructive pulmonary disease (COPD), emphysema, chronic bronchitis, cough, and respiratory failure. See March 2014, October 2014, March 2015, and December 2020 private treatment records; October 2021 VA examination. As such, the Board finds that the first element of service connection has been met. Shedden, 381 F.3d at 1167. With regard to the second element of service connection, the Board reiterates he Veteran's report that he was exposed to diesel fumes while stationed onboard the U.S.S. Bang during his active duty service. See June 2017 NOD; June 2017 VA Form 9; April 2021 hearing transcript. The Veteran's DD Form 214 notes the Veteran served onboard the U.S.S. Bang and his military occupational specialty (MOS) was torpedoman's mate. The Veteran testified that the vessel was a diesel electric submarine and that he breathed in diesel fumes. See April 2021 hearing transcript. The Veteran is competent and credible to report in-service experiences and there is no evidence to indicate the Veteran was not exposed to diesel fumes during his service. As such, the Board finds the second element of service connection has been met. Shedden, 381 F.3d at 1167. With regard to the third element of service connection, the Veteran's service treatment records are silent for any complaints, treatment, or diagnoses for any respiratory conditions. The Veteran's September 1969 separation examination does not indicate the Veteran was diagnosed, treated, or complained of any respiratory conditions at the time of his separation. The Veteran was afforded a VA examination in October 2021. The VA examiner noted the Veteran was diagnosed with emphysema in March 2015; COPD in November 2017; chronic bronchitis in September 2016; and chronic respiratory failure with hypoxia in September 2016. See October 2021 VA examination. The VA examiner noted the Veteran's report of exposure to diesel fumes onboard the U.S.S. Bang. Id. The VA examiner opined that the Veteran's respiratory conditions were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Id. As rationale, the VA examiner noted there was no mention of respiratory issues and there is no medical significance indicated on the Veteran's separation examination; and service treatment records do not indicate a respiratory issue or treatment. Id. The VA examiner noted there is no medical evidence of respiratory issues until 2012 when the Veteran was seen for another condition and that it was noted that there were no respiratory issues or diagnosis of COPD at that time. Id. The VA examiner noted the Veteran has multiple respiratory issues but there is no evidence to service connect these issues to any respiratory issues during service. Id. The VA examiner noted the Veteran is a self-reported smoker and the Veteran additionally worked in shipyards for the DoD with exposure to spray fumes, welding fumes, and priming dust for approximately 30 years. Id. The VA examiner stated that the Veteran's respiratory issues are more likely related to smoking and exposure to particulate matter while employed on shipyards than to a respiratory condition while in service. Id. In support of his claim, the Veteran provided several abstracts of articles indicating a relationship between diesel fumes and COPD. In an October 2021 VA addendum medical opinion, the VA examiner addressed each article. The VA examiner addressed the article titled "Occupational exposures and COPD; comparison of a COPD specific job exposure matrix and expert-evaluated occupational exposures" that discusses the use of a matrix to measure the likelihood of developing COPD with specific exposures to diesel exhaust. The VA examiner noted that the tool does not state that there is a direct link and can only determine the likelihood of exposure to specific factors and a risk of COPD developing. See October 2021 VA addendum medical opinion. The VA examiner agreed that the environmental pollutants such as diesel exhaust can be a risk factor for the development of COPD. Id. Similarly, the articles entitled "Occupational diesel exhaust exposure as a risk for COPD," "Occupational exposure and risk of COPD," and Occupational exposure to dust, gases, and fumes and incidence of COPD," indicate findings that are suggestive of there being a link between occupational diesel exposures to an increased risk of COPD. Id. However, the VA examiner noted the articles state that there is not enough research to determine fully the association or to clarify how occupational exposure is what percentage risk for COPD. Id. The VA examiner acknowledged the Veteran's statements that he was exposed to diesel fumes during service; however, the VA examiner stated that it is highly probable that the Veteran's post-service occupation working for the DoD on ships, in ships, with diesel gas and fumes, gases, paints, paint solvents, and organic and inorganic particles, increases his risk for COPD. Id. The VA examiner noted the exposure since service was extensive, nearly 30 years, that has a higher probability of being the etiology of the Veteran's COPD than his exposure in service and that his post-service occupational exposure is more likely the etiology of his COPD. Id. The VA examiner further noted the Veteran is no longer a smoker, but the claims file notes that the Veteran was a smoker. Id. The VA examiner noted, in September 2019, the Veteran stated to his primary medical provider that he quit smoking approximately 10 years prior, approximately in 2009. Id. The Board notes that the exact length of time the Veteran smoked is not entirely clear. The Veteran testified that he smoked during his service and for some time after service before quitting "a long time back." See April 2021 hearing transcript. A March 2015 private treatment note stated the Veteran was a former smoker who quit more than 10 years ago. The Social History section of a December 2020 treatment note stated a "50 py, quit 2010" when discussing the Veteran's smoking history. In another December 2020 treatment note, the provider noted the Veteran's tobacco use ended in 2007 but also noted a history of COPD and "continues to smoke." Therefore while it is unclear exactly when the Veteran stopped smoking, the Board agrees with the VA examiner's finding that the Veteran smoked for many decades after service. The VA examiner noted a Swiss Cohort study that the Veteran provided states that chronic irritation of the airways from cigarette smoke is the most important single causal factor for developing COPD. See October 2021 VA addendum medical opinion. The VA examiner reiterated that the single most important cause of COPD is cigarette smoking and the Veteran's file collaborates decades of smoking. Id. The VA examiner concluded that it is less likely that the Veteran's COPD is related to his military service exposure to diesel fumes and gases. Id. The Board acknowledges the Veteran's sincere contention and belief that his respiratory conditions are related to his exposure to diesel fumes during service. However, the Board notes that he has not been shown to have the medical training necessary to opine as to the nature and etiology of any of his respiratory disorders. See Kahana v, Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Additionally, there is no competent evidence of record relating the Veteran's respiratory disorders to his active duty service. The Veteran's VA and private treatment records do not provide any indication the Veteran's respiratory disorders are related to his active duty service. The Board also notes that the articles submitted by the Veteran are not specific to the Veteran's case. See Wallin v. West, 11 Vet. App. 509, 514 (1998) (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (medical treatise evidence must demonstrate connection between service incurrence and present injury or condition); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (generic statement about the possibility of a link between chest trauma and restrictive lung disease is too general and inconclusive). Moreover, the October 2021 VA examiner reviewed the articles and the Veteran's medical records in determining the Veteran's respiratory disorders are less likely than not related to his active duty service, including exposure to diesel fumes. As such, the Board finds the October 2021 VA examination and addendum medical opinion adequate for decision making purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Moreover, the Veteran nor his representative has provided any evidence to the contrary. Consequently, the Board gives more probative weight to the competent medical evidence which includes the October 2021 VA examination and medical opinions that are against the Veteran's claim for service connection than to the Veteran's lay statements. Nieves-Rodriguez, 22 Vet. App. at 304. In view of the foregoing discussion, the Board concludes that the weight of the objective medical evidence is against the Veteran's claim for entitlement to service connection for a respiratory disorder. Because the evidence in this case is not approximately balanced with respect to the merits of the claim, the benefit of the doubt doctrine does not apply. 38 C.F.R. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Accordingly, service connection for a respiratory disorder is not warranted. (Continued on the next page) Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Carlin 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.