CHRONIC OBSTRUCTIVE PULMONARY DISEASE (COPD)

Summary

The Veteran, a Navy Veteran who served from June 1979 to June 1983, appeals the denial of service connection for a breathing disorder. The Veteran contends the condition is related to in-service exposure to jet fuel and/or asbestos. Service treatment records from 1981-1983 noted breathing problems, while post-service records from October 2015 onwards show treatment for breathing issues, leading to an asthma diagnosis in March 2019. A December 2019 VA examination found no current diagnosis, despite abnormal pulmonary function test results. The case was remanded multiple times for clarification. A June 2022 VA opinion concluded the Veteran's current mild obstructive disease was most likely due to his 20-year smoking history, not service exposure, as in-service records showed only upper respiratory infections and separation exams were normal. Another September 2022 VA opinion suggested the Veteran likely has COPD, not asthma, due to smoking. The Board found the evidence persuasive against service connection, noting the current conditions did not originate in service and were most likely caused by smoking, not the claimed exposures. Service connection for the breathing disorder was denied.

Rationale

Service treatment records showed treatment for upper respiratory infections, not current breathing disorders.; Post-service records show treatment and diagnosis of asthma since October 2015.; June 2022 VA opinion found current obstructive disease most likely due to smoking, not service exposure.; Veteran's current asthma and COPD did not have onset during service.; No structural lung disease consistent with asbestos complications or other exposures found.

Full Decision Text

Citation Nr: 22071204
Decision Date: 12/22/22	Archive Date: 12/22/22

DOCKET NO. 17-53 816
DATE: December 22, 2022

ORDER

Entitlement to service connection for a breathing disorder is denied.

FINDING OF FACT

The Veteran's current breathing disorder did not have its onset in and is not otherwise related to his military service.

CONCLUSION OF LAW

The criteria for service connection for a breathing disorder are not met.  38 U.S.C. §§ 1110, 1131, 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 1979 to June 1983.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).  

This matter was previously before the Board in April 2019, March 2022 and June 2022 when it was remanded for additional development.

The Veteran seeks service connection for a breathing disorder, which he contends relates to his military service, to include as due to in-service exposure to jet fuel (JP-4, JP-5, or toluene) and/or asbestos exposure.

Service treatment records show that the Veteran reported breathing problems in September 1981, September 1982, and May 1983.

Post-service treatment records, show that the Veteran has been treated for breathing problems since October 2015 and was diagnosed with asthma in March 2019.

On VA examination in December 2019, the Veteran reported difficulty with any activity that causes a significantly increased respiratory demand, that requires working in temperature extremes and around allergens and strong smells.  Contemporaneous chest x-rays were normal and pulmonary function test demonstrated pre-bronchodilator Forced Vital Capacity (FVC) at 66 percent and post-bronchodilator FVC at 71 percent; however, the examiner found that the Vet Veteran did not have a current diagnosis as his symptoms were subjective.

In March 2022, the Board remanded the case for further development, namely, a VA medical opinion to (i) reconcile the December 2019 opinion indicating that the Veteran does not have a respiratory condition diagnosis with the December 2019 and March 2019 post-service treatment records reflecting a diagnosis of asthma, as well as with the December 2019 pulmonary function test demonstrating pre-bronchodilator FVC at 66 percent and post-bronchodilator FVC at 71 percent and (ii) consider and discuss the above discussed in-service and post-service treatment records showing complaints of breathing problems.

Upon remand, in April 2022, a clinician who specializes in obstetrics and gynecology opined, after review of the evidence, that the Veteran's December 2019 pulmonary function test (PFT) results represented mild obstructive disease.  The clinician further opined that the Veteran's 20-year-history of smoking most likely caused his current mild obstructive disease.  The clinician's opinion was based largely on the finding that "[a]ny event causing a respiratory condition arising in service would have been self-evident and the absence of respiratory complaints and a negative exam at separation essentially eliminates the possibility of a respiratory condition arising due to exposures claimed by the [V]eteran."

In June 2022, the Board remanded the case to obtain an opinion regarding the nature and etiology of the Veteran's breathing problems that considers the following: (i) service treatment records showing breathing problems in September 1981, September 1982, and May 1983; (ii) presumed in-service exposure to jet fuel (JP-4, JP-5, or toluene) and asbestos;  (iii) post-service treatment records showing breathing problems since October 2015, a diagnosis of asthma in March 2019, and the PFT results generated during the December 2019 VA examination; and (iv) lay evidence regarding the onset breathing problems during service.  

In June 2022 a VA-contracted clinician opined that it was less likely than not that the Veteran's current breathing disorder had its onset during service.  First, the clinician explained that the highlighted service treatment records, dated in 1981-1983, do not support a relationship between the current breathing disorder and service as such records show treatment for upper respiratory infections with little to no mention of breathing problems.  

Second, the clinician stated that the Veteran's presumed in-service exposure to jet fuel (JP-4, JP-5, or toluene) and
, and the PFT results generated during the December 2019 VA examination; and (iv) lay evidence regarding the onset breathing problems during service.  

In June 2022 a VA-contracted clinician opined that it was less likely than not that the Veteran's current breathing disorder had its onset during service.  First, the clinician explained that the highlighted service treatment records, dated in 1981-1983, do not support a relationship between the current breathing disorder and service as such records show treatment for upper respiratory infections with little to no mention of breathing problems.  

Second, the clinician stated that the Veteran's presumed in-service exposure to jet fuel (JP-4, JP-5, or toluene) and asbestos do not guarantee complications.  The clinician further stated that based on PFT and the CXR, the Veteran does not have a structural lung disease consistent with asbestos complications or the other potential exposures.  Third, the clinician explained that the Veteran's report of breathing problems since October 2015 oppose in-service onset and or chronicity of symptoms since service.  Finally, the clinician explained that although not a current smoker, the Veteran has a long smoking history, which is the most likely etiology of his breathing disorder.  

In September 2022, a VA-contracted clinician opined that, based on review of the evidence of record, it was at least as likely as not that the Veteran has a current diagnosis of COPD, and not asthma.  The clinician explained that COPD and asthma are both obstructive lung diseases:  asthma is an inflammatory-related condition and COPD is primarily due to lung damage from things like smoking.  The examiner further explained that the Veteran's symptoms are likely due to COPD and the diagnosis of asthma was likely incorrect as adult patients with a long history of smoking do not develop asthma in their late 50s but develop COPD.

In this case, the evidence is neither evenly balanced nor approximately so with regard to whether the Veteran's current breathing disorder had its onset in or is otherwise related to his military service.

First, after resolving any doubt in the Veteran's favor, the evidence shows that the Veteran has current diagnoses of asthma and COPD.

Second, the evidence shows that the Veteran's current asthma and COPD did not have their onset during service.  The Board acknowledges that the Veteran was treated for breathing problems during service, but finds highly persuasive the June 2022 medical opinion that such treatments are not representative of his current disorders, but show treatment for upper respiratory infections, which are inconsistent with the current asthma and COPD.  When coupled with the fact that post-service treatment records show that the Veteran has been treated for breathing problems since as early as October 2015, diagnosed with asthma in March 2019, and had normal chest x-rays in December 2019, the evidence persuasively shows that the Veteran's current COPD and asthma had onset many years after service.

Third, the evidence shows that the Veteran's current asthma and COPD are not related to his military service, to include presumed exposure to asbestos and jet fuel consistent with his work in a naval ship.  The question of whether there is a nexus between in-service event or exposure and onset many years later is a complex medical question, one not capable of observation though the senses.  The Board finds that the June 2022 medical opinion is the only competent medical opinion that adequately addresses this question.  Indeed, the clinician explained that that based on PFT and the chest x-rays, the Veteran does not have a structural lung disease consistent with asbestos complications or the other potential exposures.  The clinician further explained that the Veteran's current asthma and COPD are most likely due to his long history of smoking.

For the foregoing reasons, the evidence persuasively weighs against a finding that the Veteran's current breathing problems had their onset in or are otherwise related to his military service.  The benefit of the doubt doctrine is therefore not for application as to this claim.  See 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).  Accordingly, service connection is not warranted.

 

 

Jarrette A. Marley

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Joshua R. Castillo, 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. 


Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).  Accordingly, service connection is not warranted.

 

 

Jarrette A. Marley

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Joshua R. Castillo, 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.