CHRONIC OBSTRUCTIVE PULMONARY DISEASE (COPD)

GREGORY DEEMER · 2024 · Case ID: 24032040

MIXED

Summary

The veteran, an Army veteran who served from November 1968 to October 1970, appeals the denial of service connection for cataracts and the grant of service connection for chronic obstructive pulmonary disease (COPD). The veteran claimed COPD was due to in-service herbicide/toxin exposure or secondary to service-connected PTSD, with tobacco use as an intermediate step. The Board granted service connection for COPD, finding that while tobacco use may have predated service, it was aggravated by the veteran's PTSD, substantially contributing to COPD development. The Board found the independent medical opinion more persuasive than the VA examiner's opinion, citing medical literature supporting the link between PTSD, increased smoking, and COPD. The Board granted service connection for COPD on a secondary basis. The claim for cataracts was remanded. The veteran asserted cataracts were caused or aggravated by service-connected hypertension or, alternatively, by direct herbicide exposure. The Board found the VA examiner's opinion inadequate, noting it downplayed the link between hypertension and cataracts and did not address herbicide exposure. The case was remanded for further development, including obtaining private medical records, VA treatment records, and a new VA examination to address the nexus for cataracts related to service, herbicide exposure, and service-connected hypertension.

Rationale

Current disability (COPD) established.; Service-connected disability (PTSD) established.; Medical nexus evidence found between PTSD and COPD via tobacco use.

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

18-40 318

Full Decision Text

Citation Nr: 24032040
Decision Date: 10/21/24 Archive Date: 10/21/24

DOCKET NO. 18-40 318
DATE: October 21, 2024

ORDER

Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include associated with posttraumatic stress disorder (PTSD) is granted.

REMANDED

Entitlement to service connection for cataracts is remanded.

FINDING OF FACT

The Veteran's COPD is related to his service-connected PTSD, with tobacco use as an intermediate step.

CONCLUSION OF LAW

The criteria for entitlement to service connection for COPD are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310; VAOPGCPREC 6-2003.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from November 1968 until his honorable discharge in October 1970. See October 1970 DD Form 214 (Certificate of Release or Discharge from Active Duty).

This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c).

These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision(s) by the Regional Office of the United States Department of Veterans Affairs (VA). See December 2013 Rating Decision.

In September 2022, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record on appeal. During the hearing, the undersigned held the record open for 60 days to allow for the submission of additional evidence.

During his September 2022 hearing the Veteran withdrew his claims for entitlement to a disability evaluation in excess of 70 percent for service-connected PTSD for the period from December 14, 2015, entitlement to service connection for a neck condition, and entitlement to service connection for osteoarthritis of multiple joints. In a March 2023 decision, the Board dismissed the issues of entitlement to service connection for a neck condition and entitlement to service connection for osteoarthritis. In the same decision, the Board granted entitlement to service connection for hypertension and entitlement to service connection for obstructive sleep apnea. Additionally, in the same decision, the Board denied entitlement to a disability evaluation in excess of 50 percent for PTSD, for the period prior to December 14, 2015. As such, these issues are no longer on appeal.

The March 2023 Board decision remanded the claims for entitlement to service connection for COPD and entitlement to service connection for cataracts, for additional development. That development has been completed and the matter returns to the Board for additional appellate review.

Service Connection

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, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of 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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that
38 C.F.R. § 3.303(d).

Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of the disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2017); Allen v. Brown, 8 Vet. App. 374 (1995).

Recently, in Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023), the Federal Circuit Court of Appeals held 38 U.S.C. § 1110 employs only "but-for" causation in direct and secondary service connection claims. Therefore, a service-connected disability need only be a contributing cause, not the contributing cause, to establish secondary service connection.

For claims filed after June 9, 1998, direct service connection is not available for disabilities that resulted from disease or injury attributable to the use of tobacco products during active service. 38 U.S.C. § 1103 (a); 38 C.F.R. § 3.300. The term "tobacco products" includes cigarettes. 38 C.F.R. § 3.300 (a). However, VA's General Counsel has determined that service connection and the payment of VA disability compensation may nevertheless be available for a tobacco-related disability that is caused or aggravated by tobacco use due to a primary service-connected disability. VAOGCPREC 6-2003 (Oct. 28, 2003).

When tobacco-use as an intermediate step is implicated in a service connection claim, the Board must determine: (1) whether the service-connected disability caused the Veteran to use tobacco products after service; (2) if so, whether the use of tobacco products as a result of the service-connected disability was a substantial factor in causing a secondary disability; and (3) whether the secondary disability would not have occurred but for the use of tobacco products caused by the service-connected disability. Id.

Entitlement to service connection for COPD is granted.

The Veteran asserts that he developed COPD as a result of in-service exposure to herbicides or other toxins (such as diesel and JP4 jet fuel), or in the alternative, as secondary to service-connected PTSD, with tobacco use as an intermediate step. See July 2014 VA Form 21-4138, Statement in Support of Claim; See July 2018 VA Form 9, Appeal to Board of Veterans' Appeals; See September 2022 Hearing Transcript, at 15; see October 2023 Private Medical Opinion.

First, the Board finds that there is evidence of a current disability. See Wallin, 11 Vet. App. 509, 512 (1998); see also Allen, supra. The Veteran is diagnosed with COPD.

Second, the Board finds that there is evidence of a service-connected disability. See Wallin, 11 Vet. App. 509, 512 (1998); see also Allen, supra. The Veteran is service-connected for PTSD.

Third, the Board finds that there is medical nexus evidence establishing a connection between
2018 VA Form 9, Appeal to Board of Veterans' Appeals; See September 2022 Hearing Transcript, at 15; see October 2023 Private Medical Opinion.

First, the Board finds that there is evidence of a current disability. See Wallin, 11 Vet. App. 509, 512 (1998); see also Allen, supra. The Veteran is diagnosed with COPD.

Second, the Board finds that there is evidence of a service-connected disability. See Wallin, 11 Vet. App. 509, 512 (1998); see also Allen, supra. The Veteran is service-connected for PTSD.

Third, the Board finds that there is medical nexus evidence establishing a connection between the Veteran's service-connected disability and the current disability.

In connection with his claim, the Veteran underwent an examination in August 2017; however, the examination was determined to be inadequate, and the Veteran was scheduled for another examination in June 2023. The examiner opined against a relationship between the Veteran's PTSD and COPD, with tobacco as an intermediate step, opining:

"It is true the Veteran has been diagnosed with COPD as per Respiratory Conditions DBQ performed on 08/2017. It is additionally true that the Veteran has been diagnosed with PTSD as per PTSD DBQ performed in 2013. During BVA Hearing in 09/2022, Veteran stated that he has smoked cigarettes in order to cope with his PTSD, to relax him when he is upset. During the same hearing, he states that he started smoking 'basically in the military.' During the aforementioned 2013 PTSD DBQ, it is stated Veteran began smoking at age 15, prior to the military. These are conflicting statements, however the use of the word 'basically' leaves room for interpretation that smoking could have began prior to the military. This does tip the scales in favor of a smoking history that began prior to enlistment. It is well-known and widely accepted that smoking cigarettes is highly addictive. Any amount of nicotine can lead to addiction, and many people find it impossible to stop using nicotine products (www.mayoclinic.org/diseases-conditions/nicotine-dependence/symptoms-causes/syc-20351584). Due to the highly addictive qualities of nicotine, beginning smoking at age 15 can lead to a lifelong addiction without regard to military service or life stressors. Thus, it is less likely than not that this Veteran's COPD is proximately due to or the result of his [PTSD] with depressive and anxious features." (emphasis added)."

Essentially, the June 2023 examiner opined that the Veteran's tobacco use caused him to develop COPD but found that the Veteran's tobacco use pre-dated service and led to addiction to nicotine, regardless of the Veteran's military service or life stressors.

The Veteran provided an independent medical examination in October 2023. In contrast to the opinion of the June 2023 examiner, the October 2023 examiner opined in favor of a relationship between the Veteran's PTSD and his tobacco use. The examiner provided numerous citations to medical literature in support of the opinion and focused on the nature of the Veteran's tobacco use, specifically in regard to increased use of tobacco, as a coping mechanism for PTSD. The opinion is excerpted in part, as follows:

"[The Veteran] [...] is currently service-connected for [PTSD]. His post-service records provide substantial evidence of a significant history of PTSD symptoms stemming from his in-service traumatic experiences. These symptoms include anxiety, chronic sleep disturbances, depressed mood, increased startle response, flashbacks, and nightmares. [...] In July 2014, [the Veteran] received a diagnosis of chronic obstructive pulmonary disease (COPD) after a prolonged history of smoking, [...] despite struggling to quit smoking for years. [...] During a VA hearing on 9/23/2022, the Veteran disclosed that he initiated smoking during his military service and has used smoking as a coping mechanism for his PTSD symptoms. He further explained that he tends to smoke more when experiencing stressful circumstances. This narrative aligns with findings in medical literature, which support the notion that PTSD can significantly contribute to smoking habits and complicate smoking cessation efforts. Numerous studies have demonstrated that individuals with PTSD have higher rates of cigarette smoking compared to the general population (1,2,4,10) and they tend to engage in heavier cigarette consumption (17-23). Moreover, the quit rate for smokers with PTSD is notably low at only 23% and individuals with PTSD experience nicotine withdrawal symptoms triggered by trauma-related stimuli, often resorting to smoking to alleviate anxiety and tension (25-31). It is important to highlight that smoking is widely recognized as the primary and most important cause of COPD (35, 45, 55). Considering [the Veteran]'s longstanding smoking habit as a
medical literature, which support the notion that PTSD can significantly contribute to smoking habits and complicate smoking cessation efforts. Numerous studies have demonstrated that individuals with PTSD have higher rates of cigarette smoking compared to the general population (1,2,4,10) and they tend to engage in heavier cigarette consumption (17-23). Moreover, the quit rate for smokers with PTSD is notably low at only 23% and individuals with PTSD experience nicotine withdrawal symptoms triggered by trauma-related stimuli, often resorting to smoking to alleviate anxiety and tension (25-31). It is important to highlight that smoking is widely recognized as the primary and most important cause of COPD (35, 45, 55). Considering [the Veteran]'s longstanding smoking habit as a coping mechanism for his anxiety induced by PTSD and the compelling medical literature supporting elevated smoking rates and cessation challenges among PTSD patients, it is my professional opinion that [the Veteran]'s PTSD substantially contributed to the development and progression of his COPD by substantially contributing and exacerbating his smoking habit. In summary, in my opinion, it is 'at least as likely as not' that [the Veteran]'s PTSD substantially contributed to his smoking habit, which in turn caused the development of his COPD." (emphasis added)

The Board recognizes the Veteran's VA treatment records clearly show that he was prescribed anti-depressant medication to treat both his "depressive symptoms and smoking cessation [efforts]," providing clear evidence that his VA treatment providers believed his psychiatric disability was intertwined with his tobacco use. See e.g., November 2010 VA Treatment Records.

In reviewing the evidence, the Board finds that the Veteran's tobacco use is responsible for him developing COPD and that it was aggravated by his PTSD symptoms. The Board recognizes that the Veteran's tobacco use likely predated service. Even so, the evidence supports a finding that his tobacco use was aggravated by his service-connected PTSD, and it is on this basis, that the Veteran's COPD developed, with tobacco use as an intermediate step. Accordingly, entitlement to service connection on a secondary basis for COPD is granted.

REASONS FOR REMAND

Entitlement to service connection for cataracts is remanded.

The Veteran asserts that his cataracts were caused or aggravated by service-connected hypertension. See September 2022 Hearing Transcript, at 3, 7 ("we're presenting the theory as to whether the high blood pressure, specifically, uncontrolled high blood pressure, has caused the Veteran's diagnosed cataract condition here"). Alternatively, the Veteran asserts that he developed cataracts on a direct basis as a result of exposure to herbicides. See July 2014 VA Form 21-4138, Statement in Support of Claim.

The Veteran's VA treatment records show that he underwent cataract surgery in 2012. See e.g., December 2013 Rating Decision favorable findings; see e.g., January 2015 VA Primary Care Treatment Record. During his September 2022 Board hearing, the Veteran testified that his cataracts began as early as 2006 or 2007, to the best of his recollection.

In connection with his claim, the Veteran underwent a C&P examination in August 2017. The examiner noted the Veteran's diagnoses of cataracts in both eyes (beginning in approximately 2007) and pseudophakia (referring to the condition of having an artificial lens implanted after the natural lens has been removed) in the left eye (beginning in approximately 2012), opining against a relationship between the Veteran's service, reporting: "Welding is well known to cause corneal burns, it is not known to cause cataracts to form more quickly. The veteran's cataracts are within normal bounds for his age." See September 2022 Hearing Transcript, at 7-8.

The Veteran's records were reviewed and an opinion on hypertension was provided in April 2023: "Hypertension has no impact on cataracts. There is no relationship between these entities. No nexus is established." The examiner provided a citation to a page from the National Eye Institute on cataracts, which states cataract risk is associated with "[h]av[ing] certain health problems, like diabetes."

Although medical opinions have been obtained regarding (1) the impact of in-service welding on the Veteran's cataracts and (2) the relationship of the Veteran's service-connected hypertension to his cataracts, no medical opinion has yet been obtained regarding the impact of the Veteran's conceded exposure to tactical herbicide agent(s) on his cataracts, on a direct basis. For this reason, remand is warranted.

Additionally, the Board finds the April 2023 medical opinion to be inadequate as it appears the list of risk factors in the National Eye Institute reference page was not exhaustive, but merely provided a reference to diabetes as one particular health condition that could contribute to cataracts. "If the medical evidence of record is insufficient, or, in the opinion of the Board, of doubtful weight or credibility, the Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions". See Colvin v. Derwinski, 1 Vet. App. 171, 175. Indeed, the Board on its own initiative recognizes that other sources report hypertension is a risk factor for cataracts. See, e.g., Cataract Risk Factors, STANFORD MED., available at https://stanfordhealthcare.org/medical-conditions/eyes-and-vision/cataract/risk-factors.html (2024) ("Certain risk factors can increase the risk of developing a cataract: [...] High blood pressure."). Remand is also warranted for an adequate medical opinion, consistent with the current state of medical knowledge regarding cataract risk factors.

The matters are REMANDED for the following action:

1. Ask the Veteran to complete a VA Form 21-4142 for any private provider(s) that have diagnosed and/or treated the Veteran for cataracts, that are not already of record. Make two requests for the authorized records from any identified private provider(s), unless it is clear after the first request that a second request would be futile.

2. Obtain the Veteran's VA treatment records for any period that is not already of record.

3. After the above records development is completed, schedule the Veteran for a VA examination for his bilateral cataracts. The examiner 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 examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below.

The examiner is asked to provide a response to the following:

Are the Veteran's cataracts at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) related to service, including in-service exposure to tactical herbicide agent(s)?

The examiner is advised that a negative opinion cannot be based solely on the fact that cataracts is not on the list of diseases that are presumptively associated with exposure to herbicide agents.

Are the Veteran's cataracts at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) proximately due to a service-connected disability, including but not limited to hypertension? The examiner is advised that a service-connected disability need only be a contributing cause, not the contributing cause, to establish secondary service connection.

Are the Veteran's cataracts at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) aggravated, i.e., worsened beyond its natural progression, by a service-connected disability, including but not limited to hypertension? The examiner is advised that a service-connected disability need only be a contributing cause, not the contributing cause, to establish secondary service connection.

The examiner is requested to consider and discuss the Stanford Medicine webpage, regarding cataract risk factors. See Cataract Risk Factors, Stanford Med., available at https://stanfordhealthcare.org/medical-conditions/eyes-and-vision/cataract/risk-factors.html (2024) ("Certain risk factors can increase the risk of developing a cataract: [...] High blood pressure.").

The examiner must provide a detailed rationale for all opinions, including citations to any medical and/or scientific research that the examiner has relied upon. If the examiner is unable to provide an opinion, the examiner must note if the inability is due to a lack of personal knowledge (the examiner does not have the knowledge or training); or a lack of knowledge in the medical community (no one could respond given medical science and the known facts); or a deficiency in the record (additional facts are required).

Gregory Deemer

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A. Hennessy

The Board's decision in this case is binding only with respect

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