CHRONIC OBSTRUCTIVE PULMONARY DISEASE (COPD)

Summary

The veteran, who served from March 1969 to November 1971 and again from November 1974 to August 1992, appeals the denial of service connection for Chronic Obstructive Pulmonary Disease (COPD) and sleep apnea, and seeks a higher rating for bilateral hearing loss. The Board granted service connection for COPD on a presumptive basis under the PACT Act, acknowledging the veteran's diagnosis and qualifying Persian Gulf service. However, the claim for direct service connection for COPD prior to the PACT Act's effective date was remanded for further development, as the March 2021 VA examination did not address toxic exposures. The Board also remanded the sleep apnea claim, finding the March 2021 VA examination inadequate because it did not consider toxic exposures and incorrectly stated the veteran no longer had the diagnosis. The hearing loss claim was remanded to obtain a full copy of a July 2020 audiogram and current VA medical records, as the previous examination was in March 2021 and the severity of the hearing loss may have increased. The remand instructions require examiners to consider the veteran's toxic exposures, including diesel exhaust fumes, herbicides, and Southwest Asia exposures, and to provide opinions on the nexus to service for COPD and sleep apnea, as well as assess the current severity of hearing loss.

Rationale

PACT Act codifies COPD as presumptive for qualifying service; Veteran has diagnosis of COPD; Veteran has qualifying Persian Gulf service

Full Decision Text

Citation Nr: 24001675
Decision Date: 01/10/24	Archive Date: 01/10/24

DOCKET NO. 16-31 936
DATE: January 10, 2024

ORDER

Service connection for chronic obstructive pulmonary disease (COPD) is granted pursuant to the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act).

REMANDED

Service connection for COPD on a direct basis is remanded.

Service connection for sleep apnea is remanded.

A compensable rating prior to April 29, 2021, and a rating higher than 10 percent thereafter for bilateral hearing loss is remanded.

FINDING OF FACT

The Veteran has a diagnosis of COPD and is a confirmed Persian Gulf Veteran with service in Southwest Asia.

CONCLUSION OF LAW

The criteria for presumptive service connection for COPD pursuant to the PACT Act are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, Pub. L. 117-168, 136 Stat. 1759.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from March 1969 to November 1971 and from November 1974 to August 1992. His service decorations include the Vietnam Service Medal, the Vietnam Campaign Medal, the Cross of Gallantry with Palm the Southwest Asia Service Medal, and the Kuwait Liberation Medal.

In December 2019, the Veteran testified at a Board hearing and a transcript of the proceeding is of record.

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 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).

COPD

The Board has bifurcated the claim for service connection for COPD into two separate issues, namely presumptive service connection based on the PACT Act (granted herein) and direct service connection for the period prior to the PACT Act's effective date (remanded herein). See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (it is generally within the Board's discretion to bifurcate an issue). In this regard, granting service connection for COPD under the PACT Act on a presumptive basis is warranted at this time; however, as will be explained later in the decision, the effective date of such award can be no earlier than the PACT Act's effective date on August 10, 2022, meaning that alternate theories of entitlement to service connection must be explored for the time before that effective date. Accordingly, entitlement to service connection for COPD on a direct basis for the time period before the PACT Act's effective date requires further development on remand.

In August 2022, the PACT Act codified COPD as a condition that is now presumed to be associated with exposure to burn pits or other toxins for veterans with a qualifying period of active service.  See 38 U.S.C. § 1120.  Qualifying periods of active service include service on or after September 11, 2001, in Afghanistan, and service on or after August 2, 1990, in Iraq, Kuwait, and Qatar.  See 38 U.S.C. § 1120.  The presumption established by the PACT Act means that when the law's criteria are met, as they are in this case, the law presumes a causal relationship between the claimed disability and the veteran's service, and no evidence of a nexus is needed to establish service connection.

Here, VA has conceded that the Veteran is a Persian Gulf Veteran and the record is clear that the Veteran has a diagnosis of COPD. See December 2022 and January 2023 VA Memos; March 2021 VA examination. 

Thus, the Veteran has met the elements necessary for service connection for COPD pursuant to the PACT Act - he has a diagnosed, covered disability and has an acknowledged qualifying period of service. As such, service connection for COPD pursuant to the PACT Act is met.

REASONS FOR REMAND

At the outset, the Board
 case, the law presumes a causal relationship between the claimed disability and the veteran's service, and no evidence of a nexus is needed to establish service connection.

Here, VA has conceded that the Veteran is a Persian Gulf Veteran and the record is clear that the Veteran has a diagnosis of COPD. See December 2022 and January 2023 VA Memos; March 2021 VA examination. 

Thus, the Veteran has met the elements necessary for service connection for COPD pursuant to the PACT Act - he has a diagnosed, covered disability and has an acknowledged qualifying period of service. As such, service connection for COPD pursuant to the PACT Act is met.

REASONS FOR REMAND

At the outset, the Board notes that the Veteran's VA medical records have not been associated with the file since February 2021. As these records may have impact upon the Veteran's pending claims, current medical records should be obtained on remand.

COPD

Although service connection for COPD can be granted on a presumptive basis under the PACT Act, the effective date of such award can be no earlier than August 10, 2022, the date of enactment of the Act. This means that alternate theories of entitlement to service connection must be explored for the period prior to the PACT Act's effective date. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994).

Here, the Veteran was afforded a VA examination in March 2021 which found no link between his active duty and his COPD. The examiner, however, did not address the toxic exposures to which the Veteran had been subject during his active duty, to include conceded exposure to herbicides, burn pits in Southwest Asia, and diesel fuel exhaust as documented by his military occupational specialty of a construction equipment supervisor. Thus, a new examination is warranted.

Sleep Apnea

The March 2021 VA examination regarding the Veteran's sleep apnea, similarly, did not consider his conceded in-service toxic exposures, and instead found that the Veteran no longer had a diagnosis of sleep apnea and that his prior diagnosis was not related to his active duty. This examination, therefore, is inadequate for adjudication purposes and new examination is warranted.

Hearing Loss

The record shows that the Veteran had an audiogram in July 2020. However, a full copy of this examination which shows the Veteran's puretone hearing thresholds is not available in the Veteran's file. Remand is necessary to obtain a full copy of the Veteran's July 2020 VA hearing test. Additionally, current VA medical records, referenced above, may also impact the rating assigned to the Veteran's hearing loss. Finally, as current records may show that the Veteran's hearing loss has continued to increase in severity, a new examination is warranted as his last examination was in March 2021. Thus, the Veteran's claim must be remanded.

The matters are REMANDED for the following action:

1. Obtain current VA medical records since February 2021 regarding care and treatment of the Veteran. 

2. Obtain the full results of the Veteran's audiological examination conducted in July 2020 showing his puretone thresholds and any speech discrimination score should be obtained and associated with the record.

3. Schedule the Veteran for an examination by an appropriate clinician regarding the Veteran's COPD and sleep apnea. The claims file should be made available to the examiner for review.

The examiner must opine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any diagnosed COPD or sleep apnea was incurred in, or due to, the Veteran's service, to include his toxic exposures in-service of diesel exhaust fumes, herbicides, and those associated with his service in Southwest Asia as a Persian Gulf Veteran.

In providing this opinion, the examiner is asked to consider total potential exposure through all applicable military deployments and the synergistic, combined effect of all toxic exposure risk activities of the Veteran.

The information submitted by the Veteran in February 2015 regarding diesel exhaust fume exposure must be recorded and considered by the examiner. 

The Veteran's lay statements regarding onset and continuity of symptomology, specifically including his December 2019 hearing testimony, should be recorded and considered.

A rationale for all opinions must be provided.

4. Schedule a VA examination to determine the current severity of the Veteran's right ear hearing loss disability. The results of audiological testing must include, in numeric decibels, the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz and must provide the speech recognition scores using the Maryland CNC test. The audiologist must also describe the effect of the Veteran's hearing loss on his occupational functioning and daily activities.

 

 

K. MILLIKAN

Acting Veterans Law Judge