Citation Nr: 22037293 Decision Date: 06/29/22 Archive Date: 06/29/22 DOCKET NO. 20-14 170 DATE: June 29, 2022 ORDER Service connection for chronic obstructive pulmonary disease (COPD) is denied. Service connection for a disability manifested by blood clots in legs is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for foot spurs is remanded. Entitlement to service connection for a lumbosacral spine disorder is remanded. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that COPD began during active service, or is otherwise related to an in-service injury or disease. 2. The evidence of record persuasively weighs against finding that a disability manifested by blood clots in legs began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a disability manifested by blood clots in legs are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty from July 21, 1978, to August 31, 1978. The appellant testified at a hearing before the undersigned in August 2021. A transcript of the hearing is of record. Service Connection Entitlement to service connection for COPD and a disability manifested by blood clots in legs As an initial matter, the Board notes that in July 2021, the appellant's representative submitted a nonspecific letter in which she stated that VA had relied upon a VA compensation and pension examination and she was unable to determine the qualifications of this examiner from the record. Therefore, she requested that VA provide her with a copy of the examiner's personnel file or qualifications in order to make a detailed objection to the VA examination report. A review of the record shows, however, that the Veteran has not been afforded a VA examination for the issues decided herein. Therefore, VA's duty to assist does not require that this information be provided to the Veteran nor does the competency of the VA examiner need to be addressed, given that no VA examination has been conducted. See Francway v. Wilkie, 940 F.3d 1304, 1307-08 (Fed. Cir. 2019) (when a challenge to the competency of the medical examiner is raised, the Board must make a factual finding as to whether the medical examiner is competent). Also, during the August 2021 Board hearing, the appellant asserted that all of his service records might not be available as a result of a fire that occurred at the National Personnel Records Center (NPRC). The Board, however, notes that this fire took place in 1973, several years before the Veteran's brief period of service in 1978, and there is no indication that his service treatment records or service personnel records are incomplete. As such, no further development is necessary in this regard. Turning to the merits of the claim, the appellant contends that service connection should be established for COPD and for a disability manifested by blood clots in both of his legs. During the August 2021 Board hearing, he argued that his COPD had its onset as a result of exposure to tear gas during his period of basic training. Regarding the disability manifested by blood clots of the legs, he testified that he began having leg cramps while marching during basic training, which, he believed marked the onset of the blood clot disease of the legs. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 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). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a), (d); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Presumptive periods do not apply to ACDUTRA or INACDUTRA. Id. Therefore, consideration of 38 C.F.R. §§ 3.307 and 3.309 (presumptive service connection for certain chronic diseases) for the periods of ACDUTRA or INACDUTRA is not appropriate. ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes. 38 C.F.R. § 3.6(c)(1). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has current diagnoses of COPD and manifestations of blood clots of both his lower extremities, the evidence of record persuasively weighs against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. Review of the records shows that the Veteran's service treatment records (STRs) are silent for any complaints or manifestation of either a chronic respiratory disorder or of peripheral vascular disease, including blood clots of each lower extremity. Postservice VA treatment records show that in November 2004, the Veteran denied having any previous blood clots and there was no swelling in the calves noted. From 2010, it is noted that the Veteran has been on medication to prevent blood clots. In October 2012, the Veteran reported that his back was doing "ok" until he received news that his cousin passed away the night before from a blood clot. He also reported some pains in his legs on the walk over to the medical facility. In September 2019, it was reported that the Veteran was under treatment for blood clots in the legs with blood thinner medication. For COPD, VA treatment records from June 2006, March 2008, and May 2009 show the Veteran denied having a history of COPD. In October 2012, during an admission evaluation note, it was stated the Veteran did not have COPD. Treatment records from September 2018, show COPD as a diagnosis included among the Veteran's medical history. The Veteran's postservice treatment records do not address the etiology of the COPD or blood clots, nor do they indicate that either disability has been present since the Veteran's service. In a February 2022 statement in support of the claim, a private physician opined that the Veteran's COPD and Buerger's disease of both lower extremities were at least as likely as not related to an in-service injury, event, or disease. However, the opinion is not probative because the other evidence of record persuasively weighs against finding that the incidents cited by the physician as supporting rationale for his opinion occurred. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Specifically, to support his positive nexus opinion, the private physician stated that COPD and peripheral vascular disease of both lower extremities were conditions that began with exposure to burn pit toxicants and diesel engine exhaust that were inhaled in the form of certain particulate matter. The physician indicated that, in the military, "veterans are exposed to multiple aerosolized Toxicants through military exercise, Explosions, and combat." It was further stated that these exposures occur through proximity to products of incomplete combustion such as burn pits, bombed buildings, ordinance, dust from military vehicles, and "even from dust storms," and that these fine particle matter are causally related to cardiovascular, pulmonary disease, and cancer. The private physician explained that particle matter are "effective delivery agents for polycyclic aromatic hydrocarbons, chlorinated Hydrocarbons, and toxic metals as well as silica." The private physician also stated that an additional cause of the appellant's COPD and lower extremities vascular disease was exposure to polyfluoroalkyl substances (PFAS) that were now ubiquitous in the environment as they were used in nonstick cookware, stain prevention, detergents, cleaning products, and fire prevention. The private physician stated that widespread contamination of drinking water and agricultural land, including water beneath military bases and airports, utilization in clothing and leather manufacturing, and firefighting at air bases causes the PFAS to enter the water table. The private physician thus considered the appellant to have sustained substantial exposures during his military service. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140, 146 (1993); Guerrieri, 4 Vet. App. at 470-71. While the Board may not ignore a medical opinion, it is certainly free to discount the relevance of a physician's statement, as it has done in this case. See Sanden v. Derwinski, 2 Vet. App. 97 (1992). In this case, the positive nexus opinion dated in February 2022 was based essentially upon a finding that the appellant was exposed to to contaminates such as burn pits, bombed buildings, ordinance, dust from military vehicles, and dust storms as well as PFAS. However, there is no record of such exposure in the medical or personnel records from the very brief period of service that has been documented in the record. While the appellant believes he had a much longer period of service, service personnel records show his only service was for approximately five weeks, from July 1978 to August 1978, during which he underwent basic training as part of his service in the Reserves, and then he was discharged from the Reserves in August 1978. The Board does not find it credible that this brief period of service would have exposed him to burn pits, bombed buildings, ordinance, dust storms or the other contaminants mentioned by the private physician in his February 2022 report. Regarding PFAS exposure, the February 2022 private medical opinion noted that these chemicals were widespread throughout the environment and not restricted to military service. As such, the Board finds the February 2022 private physician's opinions to be based on an inaccurate factual premise and not persuasive to the issue of service connection. The Board acknowledges that a VA examination has not been obtained to address the Veteran's claimed COPD and disability manifested by blood clots in legs. However, a medical examination or opinion is only necessary when the appellant presents a claim for service connection in which there is a pertinent event, injury, or disease in service; there is evidence of current disability; the medical evidence of record does not contain sufficient competent medical evidence to decide the claim; and there is an indication that the claimed disability or symptoms may be associated with service. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the evidence weighs persuasively against a finding that the claimed in-service exposures to toxic chemicals and other contaminants, such as burn pits and dust, actually occurred. Moreover, there is no indication in the record that the Veteran's COPD or disability manifested by blood clots in the legs is due to an injury or event in service. As outlined above, these disabilities manifested many years after the Veteran's separation from service and there is no competent or credible indication that they may be related to his military service. Accordingly, a VA examination regarding this direct service connection claim is neither necessary nor warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). For these reasons, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for service connection for COPD and a disability manifested by blood clots in the legs, and the claims must be denied. As the evidence weighs persuasively against the claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, including PTSD; tinnitus; foot spurs; and a lumbosacral spine disorder is remanded. In a February 2022 private medical opinion, it was opined that the appellant's tinnitus was related to noise exposure in basic training, that his foot spurs were related to conducing military exercises while wearing combat boots, and that his lumbosacral spine disorder was related to carrying heavy backpacks, lifting and bending, and running over irregular ground during military training. However, it also appears that this medical opinion was premised on a belief that the appellant served from July 1975 to April 1979 when, as discussed above, he served approximately five weeks, from July 1978 to August 1978. Nevertheless, in light of the contentions raised through this private medical opinion, the Board will remand for a VA examination. Likewise, as the appellant has not been afforded a VA examination that addresses his service connection claim for an acquired psychiatric disorder, the Board will remand for such. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, including PTSD. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to an in-service stressor (the Veteran reports stressors of undergoing tear gas training and of being exposed to live rounds during basic training). If the Veteran is diagnosed with a personality disorder and PTSD, the examiner must opine whether the PTSD was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. 2. Schedule the Veteran for VA examinations for his tinnitus, foot spurs, and a lumbosacral spine disorder. The examiners must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiners should consider them a "disability" for the purpose of providing the requested opinions below. The examiners are asked to provide a response to the following: Is tinnitus, foot spurs, or a lumbosacral spine disorder at least as likely as not related to service? The examiners must specifically address the rationale utilized by the private physician in his February 2022 statement. (Continued on the next page) Provide a rationale to support the opinions. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph P. Gervasio 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.