CHRONIC OBSTRUCTIVE PULMONARY DISEASE (COPD)

APRIL MADDOX · 2024 · Case ID: 24034302

MIXED

Summary

The Veteran, an Army Veteran who served from May 1954 to August 1974, with service in Vietnam and a MOS of tactical communication chief, had claims for service connection for a respiratory disorder and an acquired psychiatric disorder before the Board. The Veteran passed away in February 2012, and his surviving spouse was substituted into the appeal in November 2022. The Board granted service connection for a respiratory disorder, including COPD and emphysema, finding it due to in-service asbestos and herbicide exposure. The Board found the Veteran's statements regarding asbestos exposure credible and noted that herbicide exposure was conceded. While VA examiners offered opinions against a nexus to service, the Board found the Veteran's private treatment records and provider letters more probative, establishing a link through toxic exposures and cigarette smoke, and resolved doubt in the Veteran's favor. Service connection for an acquired psychiatric disorder, specifically adjustment disorder, was also granted. A VA examiner concluded the psychiatric disorder was less likely than not related to service but rather to the Veteran's severe COPD and emphysema. The Board found this opinion credible and, resolving doubt in the Veteran's favor, granted service connection for the psychiatric disorder as secondary to the respiratory disorder. The issue of entitlement to Special Monthly Compensation (SMC) based on aid and attendance or housebound status was remanded for further development, including adjudication of TDIU based on the respiratory disorder.

Rationale

Diagnosis of COPD and emphysema met.; In-service exposure to asbestos and herbicides established.; Private provider opinions provided probative nexus linking conditions to exposures.

Service Branch

ARMY

Special Benefit

SMC - AID & ATTENDANCE; SMC - HOUSEBOUND

Docket No.

08-25 601

Full Decision Text

Citation Nr: 24034302
Decision Date: 12/16/24 Archive Date: 12/16/24

DOCKET NO. 08-25 601
DATE: December 16, 2024

ORDER

Service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD) and emphysema, is granted.

Service connection for an acquired psychiatric disorder, to include adjustment disorder, is granted.

REMANDED

The issue of entitlement to special monthly compensation (SMC) based on aid and attendance of another person or housebound is remanded.

FINDINGS OF FACT

1. Resolving all doubt in the Appellant's favor, the Veteran's respiratory disorder is due to toxic exposures during his military service, to include asbestos and herbicides.

2. Resolving all doubt in the Appellant's favor, the Veteran's psychiatric disorder is due to or the result of his now service-connected respiratory disorder.

CONCLUSIONS OF LAW

1. The criteria for service connection for a respiratory disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active military service in the United States Army from May 1954 to August 1974. The Veteran passed away in February 2012 and the Appellant is the Veteran's surviving spouse.

These matters are before the Board of Veterans' Appeals (Board) from rating decisions issued in July 2007 and August 2007 by the Department of Veterans Affairs (VA) Regional Office, which is the Agency of Original Jurisdiction (AOJ) in this case.

The Veteran testified before the undersigned Acting Veterans Law Judge at a Travel Board hearing in February 2010. A transcript of this proceeding has been associated with the claims file.

In February 2011, the Board remanded the above issues for additional development. Unfortunately, as above, the Veteran passed away in February 2012 and, in April 2012, the Board dismissed the appeal based on the death of the Veteran.

In November 2022, the AOJ discovered a March 2012 claim for substitution and the Appellant, the Veteran's surviving spouse, was substituted in this appeal. Following the substitution, the Board remanded the appeal for further development in March 2023. The case has been returned to the Board for review.

ANALYSIS

Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Service connection may also be established on a secondary basis for a disability which is due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995).

1. Service connection for a respiratory disorder is granted.

Prior to his death, the Veteran contended that he experienced a respiratory condition, to include chronic obstructive pulmonary disease (COPD) and emphysema, which was due to his active military service, to include as due to asbestos and herbicide exposure.

First, prior to his death, the Veteran had a diagnosis of multiple respiratory disabilities, to include COPD and emphysema. See October 2009 VA treatment record. Thus, the first element of service connection is met.

Next, the Veteran alleged that his respiratory disorders were due to in-service herbicide and asbestos exposure. The Veteran had service in Vietnam and exposure to herbicides has been conceded. See January 2024 TERA memorandum; Department of Defense Form 214 (DD 214). Regarding asbestos exposure, the Veteran previously asserted that he was exposed to asbestos while in his military occupation specialty (MOS) of communications. See February 2010 hearing transcript. The Veteran's DD 214 confirms his MOS as 31G- tactical communication chief. The Veteran testified at the February 2010 Board hearing that he was constantly exposed to asbestos throughout his military career in his communications role. The Veteran described in detail his exposure to asbestos which was located in buildings and vehicles used for communications purposes. See March 2007 statement from Veteran. The Board finds these statements from the Veteran to be competent and credible. Following service, the Veteran held several jobs including rental store clerk, repairman for appliances, automobile repair, an instructor for new servicemembers teaching communications, and telecommunications. See November 1984 VA examination; February 2010 hearing testimony. During the February 2010 Board hearing, the Veteran admitted some post-service asbestos exposure when his job included similar duties to those he performed during service. The Veteran stated that he was serving as an instructor for approximately 7 to 9 years and then in telecommunications for approximately 4 years. Although the Veteran may have been exposed to asbestos after his military service, it was only in roles requiring similar duties to those he performed in service. Given his 20 years of military service, it follows that his at most 13 years of potential exposure after service is far less than the potential exposure he had in service. Giving the benefit of the doubt to the Appellant, the Board finds that the Veteran was exposed to both asbestos and herbicides in service. Thus, the second element of service connection is met.

Finally, the question before the Board is whether there is a nexus, or link, between the Veteran's diagnoses and his exposures in service. In October 2023, a VA examiner opined on the question of nexus. The examiner stated that they were unable to address nexus as asbestos exposure was not confirmed, and that it was VA's responsibility to confirm asbestos exposure. In March 2024, a second VA examiner offered an opinion on nexus. This VA examiner concluded that research does not make a conclusive link between the Veteran's respiratory disorders prior to his death and herbicide exposure. Then, the examiner stated that the Veteran worked as a welder prior to service where he had a high likelihood of asbestos exposure. Thus, the examiner reasoned, a nexus could not be established between the respiratory disorder and military service.

Prior to his death, the Veteran submitted three treatment records regarding nexus. First, a June 2007 VA treatment record stated, "his deteriorating COPD is more than likely than not related to the asbestos/agent orange exposure during military service." Second, in a March 2008 private treatment record, the provider noted that the Veteran had some interstitial lung disease, some scarring, and some severe diffuse emphysema. "These findings are consistent with his history of exposure to asbestos and Agent Orange, and cigarette smoke." Third, an August 2008 letter from the Veteran's private provider stated the Veteran had interstitial lung disease which is typically caused by exposures to toxins such as inhaled asbestos. Further, exposure to herbicides can and does cause damage to lungs when it is inhaled in significant quantities. The provider stated that the Veteran had sufficient exposure to Agent Orange to result in interstitial lung disease. Finally, the examiner stated asbestos can cause interstitial lung disease, which the Veteran had. The examiner continued that based on the evidence available, he would have classified the Veteran as having asbestosis with suspicious pulmonary nodule.

The Board finds little probative value in the October 2023 and March 2024 VA opinions. The October 2023 opinion did not provide a statement on nexus because asbestos exposure was not confirmed. Thus, it adds no positive or negative value to the question of nexus. The March 2024 opinion stated that there is no nexus because research has not confirmed a conclusively link between herbicide exposure without citing that research or providing any more information. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007) (a medical opinion must do more than merely state a conclusion regarding the etiology of the claimed disorder; instead, it must also support the conclusion with sufficient rationale and explanation). Then the examiner stated that the Veteran was exposed to asbestos prior to service, and thus his respiratory disorder could not be linked to military service. The Veteran was born in 1936 and joined in 1954 implying that he joined at age 18. Any pre-service exposure to asbestos would not have lasted more than a few years. As discussed above, the Veteran competently and credibly stated that he was exposed to asbestos throughout his 20-year military career, a far longer time period than any potential pre-service exposure. Accordingly, the Board affords little weight to this opinion.

On the other hand, the June 2007 VA treatment record directly states that the Veteran's COPD was most likely due to his in-service exposures but offers no supporting rationale. Therefore, the Board affords this statement little to no probative value. The March 2008 private treatment record provides a more reasoned link between the Veteran's respiratory disorder and his exposures in service explaining that specific findings to the Veteran are consistent with toxic exposures and cigarette smoke. Similarly, the August 2008 letter from the Veteran's private provider also provides a more reasoned nexus between the Veteran's specific disorders and his toxic exposures. Taken together, the Board affords more probative value to these statements from the Veteran's providers regarding the question of nexus. Accordingly, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran's respiratory disorders are due to his in-service toxic exposures. Therefore, the third element of service connection is met.

After resolving all doubt in favor of the Veteran, the Board finds that service connection for the Veteran's respiratory disorder is met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

2. Service connection for an acquired psychiatric disorder is granted.

Prior to his death, the Veteran contended that he experienced an acquired psychiatric disorder due to a service-connected disability. See October 2005 VA Form 21-4138; March 2007 statement from Veteran; December 2023 VA examination.

As an initial matter, prior to his death, the Veteran asserted claims for multiple psychiatric diagnoses including posttraumatic stress disorder, depression, and anxiety. The available record only contains one psychiatric diagnosis, which is adjustment disorder. See June 2007 VA examination. Accordingly, the Board has reframed the claim as one for an acquired psychiatric disorder, to include adjustment disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Board finds that the Veteran had a diagnosed acquired psychiatric disorder prior to his death; the first element of service connection is met.

The remaining question for the Board is whether the Veteran's diagnosed acquired psychiatric disorder was caused by or aggravated by a service-connected disability, which as a result of this decision, now includes his respiratory disorder. A December 2023 VA opinion concluded that it was less likely than not that the Veteran's acquired psychiatric disorder was directly related to his military service. Instead, the examiner concluded that the Veteran's acquired psychiatric disorder was related to his respiratory disorders. Similarly, the opinion concluded that it was less likely than not that the Veteran's psychiatric diagnosis was related to his then service-connected disabilities, however, the examiner stated that the Veteran's psychiatric diagnosis was instead related to the Veteran's severe COPD and emphysema. This conclusion is supported by the record. For example, in a May 2011 statement, the Veteran stated that his depression was due to the state of his medical conditions such as always being connected to an oxygen tank, only leaving home for medical appointments, deteriorated lung capacity, and depending on his spouse for all of his care like bathing. Further, nothing in the record suggests that a nonservice-connected condition contributed to the Veteran's acquired psychiatric disorder.

The December 2023 VA opinion is the only competent probative evidence of record as to whether the Veteran's acquired psychiatric disorder was caused by or aggravated by his
however, the examiner stated that the Veteran's psychiatric diagnosis was instead related to the Veteran's severe COPD and emphysema. This conclusion is supported by the record. For example, in a May 2011 statement, the Veteran stated that his depression was due to the state of his medical conditions such as always being connected to an oxygen tank, only leaving home for medical appointments, deteriorated lung capacity, and depending on his spouse for all of his care like bathing. Further, nothing in the record suggests that a nonservice-connected condition contributed to the Veteran's acquired psychiatric disorder.

The December 2023 VA opinion is the only competent probative evidence of record as to whether the Veteran's acquired psychiatric disorder was caused by or aggravated by his now service-connected respiratory disorder, and it is consistent with the rest of the record. Having found probative value in the December 2023 VA opinion, the Board finds the evidence to at least be in equipoise as to whether the Veteran's acquired psychiatric disorder was caused or aggravated by his now service-connected respiratory disorder.

Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for an acquired psychiatric disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

REASONS FOR REMAND

3. The issue of entitlement to SMC based on aid and attendance of another person or housebound is remanded.

Prior to his death, the Veteran contended that he was in need of aid and attendance due to his pulmonary disorders. See March 2007 statement from Veteran. Similarly, the Veteran stated that due to his physical and pulmonary disorders, his spouse had to help him with all of his daily activities. Id. The Veteran stated his spouse would give him a bath, dress him, and drive him. See May 2008 AOJ hearing transcript; see also February 2010 Board hearing testimony. A September 2009 VA treatment record showed that the Veteran was oxygen dependent with any activity other than rest and is short of breath after walking 20 feet.

A Veteran will be considered housebound where the evidence shows that, as a direct result of his service-connected disability or disabilities, he is substantially confined to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350.

The SMC rate payable under 38 U.S.C. § 1114 (s) is applicable where the Veteran has, in addition to a single, permanent service-connected disability rated 100 percent disabling, additional service-connected disability or disabilities independently evaluated as 60 percent or more disabling which are separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or is permanently housebound by reason of service-connected disability or disabilities.

A total disability rating due to an individual unemployability (TDIU) rating can satisfy the need for a rating of 100 percent if it can be sustained by a single disability. Bradley v. Peake, 22 Vet. App. 280 (2008); see also Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011).

Prior to this decision the Veteran was not service connected for any disability. As such, the AOJ decisions effectuating the service connection claims in this Board decision discussed above could significantly impact a decision on the issue of entitlement to SMC. The issues are inextricably intertwined. A remand of the claim of entitlement to SMC based on the need for aid and attendance or by reason of being housebound is required.

Accordingly, adjudication of this matter will be deferred until the service connection claims granted in this decision are effectuated by the AOJ. Gurley v. Peake, 528 F.3d 1322 (Fed. Cir. 2008) (noting that remand of inextricably intertwined claims was warranted for reasons of judicial economy even in absence of administrative error); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (providing that two or more issues are inextricably intertwined if one claim could have significant impact on the other).

On remand, the AOJ should develop and adjudicate the issue of entitlement to a TDIU based solely on the Veteran's respiratory disorder for any period on appeal where the respiratory disorder is rated less than 100 percent. If a TDIU based solely on the Veteran's respiratory disorder requires extraschedular consideration for any time period on appeal, that time period should be referred to VA's Director of Compensation Service for consideration of
claims was warranted for reasons of judicial economy even in absence of administrative error); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (providing that two or more issues are inextricably intertwined if one claim could have significant impact on the other).

On remand, the AOJ should develop and adjudicate the issue of entitlement to a TDIU based solely on the Veteran's respiratory disorder for any period on appeal where the respiratory disorder is rated less than 100 percent. If a TDIU based solely on the Veteran's respiratory disorder requires extraschedular consideration for any time period on appeal, that time period should be referred to VA's Director of Compensation Service for consideration of whether TDIU based solely on the Veteran's respiratory disorder is warranted on an extraschedular basis.

Following the development and adjudication of the issue of entitlement to a TDIU based solely on the Veteran's respiratory disorder, the AOJ should adjudicate the issue of entitlement to SMC based on aid and attendance of another person or housebound.

The matters are REMANDED for the following action:

After the grants of service connection in this decision have been effectuated by the AOJ, develop and adjudicate the issue of entitlement to a TDIU based solely on the Veteran's respiratory disorder for any period on appeal where the respiratory disorder is rated less than 100 percent.

If a TDIU based solely on the Veteran's respiratory disorder requires extraschedular consideration for any time period on appeal, that time period should be referred to VA's Director of Compensation Service for consideration of whether TDIU based solely on the Veteran's respiratory disorder is warranted on an extraschedular basis.

Following the development and adjudication of the issue of entitlement to a TDIU based solely on the Veteran's respiratory disorder, the AOJ should readjudicate the issue of entitlement to SMC based on aid and attendance of another person or housebound.

APRIL MADDOX

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board W. J. Goozée, 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.

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