Citation Nr: 22019656 Decision Date: 04/02/22 Archive Date: 04/02/22 DOCKET NO. 18-94 567 DATE: April 2, 2022 ORDER Service connection for chronic obstructive pulmonary disease (COPD) is denied. FINDING OF FACT The Veteran's COPD did not have its onset during service and is not otherwise related to service or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for COPD have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from January 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) from an April 2017 rating decision. Unfortunately, the Veteran died in November 2018. The Appellant is the Veteran's surviving spouse, who has successfully substituted as Appellant on the claim of service connection for COPD, which was pending at the time of the Veteran's death. The Appellant testified before the Board at a hearing in September 2021. A transcript of the hearing has been associated with the claims file. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show the existence of (1) a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. Certain chronic diseases are subject to presumptive service connection if the disease manifests to a compensable degree within one year of separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). COPD The Board has reviewed the evidence of record and finds that service connection is not warranted for COPD. In May 2018, the Veteran underwent a VA examination regarding COPD. The Veteran stated that he was first diagnosed as having COPD in 2016. He reported that his symptoms include shortness of breath with exertion, fatigue, and cough, and he stated that he believes his COPD is caused by his service-connected diabetes mellitus. The Veteran also reported that he smoked one pack of cigarettes per day for at least 30 years; was exposed to second-hand smoke during childhood; and was exposed to irritants in his civilian occupation for 36 years. The examiner diagnosed the Veteran as having COPD, and opined that it less likely than not that the Veteran's COPD was proximately due to or the result of his service-connected diabetes mellitus. The examiner explained that the two conditions are not medically related; that COPD is a separate entity from diabetes mellitus; and that COPD is a common and preventable disease usually caused by significant exposure to noxious particles or gases. Further, the examiner explained that the medical literature does not support a medical relationship stating diabetes mellitus as a cause for COPD. Regarding whether the Veteran's COPD was aggravated by diabetes mellitus, the examiner opined that it less likely than not that the Veteran's COPD was aggravated beyond its natural progression by diabetes mellitus and reiterated the medical opinion regarding secondary service connection. The Board has considered that during the May 2018 VA examination the Veteran asserted that his COPD was caused by his service-connected diabetes mellitus. Although the Veteran is competent to report his observations and to opine as to some medical matters, his contention that his COPD was caused or aggravated by diabetes mellitus or was otherwise related to service relates to an internal medical process, which extends beyond an immediately observable cause-and-effect relationship and is the type of evidence that the courts have found to be beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). During the September 2021 Board hearing, the Appellant's representative asserted that the May 2018 VA examination opinion regarding service connection for COPD was inadequate. The representative asserted that a study by the National Institute of Health has established a link between COPD and diabetes mellitus. The representative stated that the link indicates an aggravation between the two disabilities. Further, the representative asserted that the May 2018 VA examination opinion merely discusses a causal relationship and does not properly address whether the Veteran's COPD was aggravated by his service-connected diabetes mellitus. In February 2022, an addendum VA examination opinion regarding aggravation was obtained. The examiner opined that it is less likely than not that the Veteran's COPD was aggravated beyond its natural progression by his service-connected diabetes mellitus. The examiner explained that there is no direct pathophysiological relationship between diabetes mellitus and COPD. Further, the examiner stated that the only commonality is that both are chronic medical conditions, and the more chronic medical conditions an individual has the more likely the long-term prognosis becomes unfavorable. The examiner explained the medical evidence of record documents the cause and any aggravation of COPD, which is smoking tobacco for 30 years rather than diabetes mellitus. Additionally, the examiner reviewed the study by the National Institute of Health referenced by the Appellant's representative during the September 2021 Board hearing. The examiner concluded that the study has no medical relevancy on the present issue and that the results of the study are invalid due to a critical deficiency. The examiner stated that the study concluded that diabetes mellitus, either pre-existing or incident, was associated with worse outcomes in COPD patients. The examiner explained that this statement could also be true for any other known chronic medical condition, since one chronic medical condition compounded on another by simply being present makes the clinical situation worse. Further, the examiner explained that the study did not control for smoking tobacco. The examiner stated that if this study population had a significant number of tobacco smokers, COPD in these individuals would be more severe in nature, which is a confounding variable that influences both the supposed cause and the supposed effect. The examiner concluded that such confounding variables should be accounted for to ensure valid results. In March 2022, the Appellant submitted the National Institute of Health study referenced in the September 2021 Board hearing, which was published in April 2017, as well as an additional study regarding COPD published in February 2015. The additional study stated that there is evidence that diabetes mellitus can worsen the progression and prognosis of COPD, which may result from the direct effects of hyperglycemia on lung physiology, inflammation, or susceptibility to bacterial infection. The study concluded that although there is evidence to support a connection between COPD and diabetes mellitus, additional research is needed to better understand these relationships and their possible implications. Additionally, the Board notes that the Veteran's VA treatment records demonstrate a diagnosis, treatment, and complaints regarding COPD. Specifically, the VA treatment records document that in May 2016 the Veteran complained of dyspnea, palpitations, dizziness, and chest pain, which his medical providers determined to be COPD manifesting as the Veteran smoked for many years. The Veteran's medical providers do not provide an opinion stating that his COPD is caused by service or caused or aggravated by a service-connected disability. Therefore, the Board finds the Veteran's treatment records do not support a finding of an onset during service, a nexus relationship, or a finding of continuity of symptoms based on the clinical evidence. The Board finds that the probative evidence of record does not support a finding of service connection for COPD. First, the evidence demonstrates that the Veteran was diagnosed as having COPD in 2016, which does not support a finding of an onset during service or continuity of symptoms based on the clinical evidence. Second, the May 2018 VA examiner determined that it is less likely than not that the Veteran's COPD is caused by his service-connected diabetes mellitus and provided a well-reasoned medical rationale in support of the provided opinion. Third, the February 2022 VA examiner determined that it is less likely than not that the Veteran's COPD was aggravated beyond its natural progression by his service-connected diabetes mellitus and provided a well-reasoned medical rationale in support of the provided opinion. In this regard, the February 2022 VA examiner also provided an analysis of the National Institute of Health study published in April 2017 and referenced by the Appellant's representative. The examiner determined that the findings of the study had no medical relevancy and that the results had a critical deficiency, particularly with respect to its application to the Veteran's history. The examiner provided a well-reasoned medical rationale in support of the findings regarding the medical study. Lastly, regarding the additional medical studies submitted in March 2022, the National Institute of Health study was specifically addressed in the February 2022 VA examination opinion. With respect to the medical study published in April 2015, it specifically stated that additional research is needed to better understand the relationship between diabetes mellitus and COPD. Such a tentatively stated conclusion does not provide grounds for concluding in the Veteran's case that there is an approximate balance of evidence on whether COPD was caused or aggravated by diabetes mellitus. Also, it is notable that it was published prior to the April 2017 National Institute of Health study, which was considered by the 2022 VA evaluator. Given these factors, further medical review of this evidence is not required, and the greater weight of the evidence remains against the conclusion COPD was caused or aggravated by diabetes mellitus. Accordingly, the appeal is denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Page-Nelson, Associate 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.