Citation Nr: 1325896 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-17 072 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as a result of exposure to herbicides. 2. Entitlement to service connection for sleep apnea, to include as a result of exposure to herbicides. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran had active duty service from June 1970 to January 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2010 and January 2011 rating decisions by the Lincoln, Nebraska, Regional Office (RO) of the Department of Veterans Affairs (VA). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. There is no competent evidence of record showing that the Veteran's COPD had its onset during active military service or that it is etiologically related to service, to include presumed herbicide exposure. 2. There is no competent evidence of record showing that the Veteran's sleep apnea had its onset during active military service or that it is etiologically related to service, to include presumed herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD, to include as due to herbicide exposure, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1116, 1131, 1137, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for sleep apnea, to include as due to herbicide exposure, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1116, 1131, 1137, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1). December 2009 and December 2010 letters explained the evidence necessary to substantiate the claims for service connection for COPD and sleep apnea. The letters also explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006). These letters were provided to the Veteran prior to the initial adjudication of his claims, pursuant to Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA has a duty to assist Veterans in obtaining evidence necessary to substantiate their claim. The claims file contains service treatment records (STRs), service personnel records, VA treatment records, and lay statements. The Veteran has not been afforded a VA examination in connection with his claims for service connection. However, a VA examination is not required in this case because the information and evidence of record does not indicate that the Veteran's COPD or sleep apnea may be associated with service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4)(i). As explained in more detail below, the Veteran has not indicated that he had symptoms of COPD or sleep apnea during service and/or continuing since service. The service treatment records are negative for any complaints or findings related to these disabilities, and they were first diagnosed more than 35 years after service. In addition, there is no competent evidence of record relating his current COPD and sleep apnea to any in-service event, injury, or disease, including herbicide exposure. Thus, remand for a VA examination/opinion is not required. The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the particular claims on appeal. He has been given ample opportunity to present evidence and argument in support of his claims. All relevant evidence necessary for an equitable disposition of the Veteran's appeal of the issues has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Law and Regulations Generally, service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Direct service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. at 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Also, certain chronic diseases may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. Service in the Republic of Vietnam includes service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). The following diseases are associated with herbicide exposure for purposes of the presumption: chloracne or other acneform disease consistent with chloracne, Type II diabetes, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and certain soft-tissue sarcomas. A presumption of service connection based on Agent Orange exposure, however, is specifically not warranted for various disabilities, to include melanoma and non-melanoma skin cancer (basal cell and squamous cell). 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). Chloracne or other acneform disease consistent with chloracne must manifest to a degree of ten percent or more within one year after the last date of exposure to an herbicide agent. 38 C.F.R. § 3.307(a)(6). Even if a Veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, VA must also consider the claim on a direct service-connection basis. When a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Merits of the Appeal The Veteran contends that his COPD and sleep apnea are the result of in-service exposure to herbicides. His service personnel records confirm that he served in Vietnam in motor transport and as a heavy vehicle driver. His duty MOS (military occupational specialty) was 64C30. (See DD Form 214 and personnel records). Therefore, in-service exposure to herbicides is conceded. However, the Veteran's diagnosed COPD and sleep apnea are not on the list of diseases associated with herbicide exposure for purposes of the presumption. Therefore, service connection on a presumptive basis is not warranted. The Veteran may still establish service connection for COPD and sleep apnea with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167 (1999). The Veteran's STRs are silent regarding a diagnosis of or treament for COPD and sleep apnea, including symptoms. His STRs indicate no complaints of trouble sleeping, chronic cough, shortness of breath, or pain or pressure in the chest. (See August 1969 Report of Medical History; August 1969 Report of Medical Examination; December 1971 Report of Medical History and other STRs). On separation examination in December 1971, the Veteran denied any shortness of breath and frequent trouble sleeping. Physical examination, including of the lungs and chest, was normal at that time. Post-service medical evidence reflects that COPD was first diagnosed in June 2009 and that sleep apnea was first diagnosed in September 2009. The Veteran's STRs and post-service treatment records provide no evidence to support complaints of COPD or sleep apnea during service or continuing since service. Further, the Veteran has not reported a history of continuity of symptomatology since service. Rather, in December 2010 he stated that his "breathing problem was a slow developing condition and I cannot remember when it did start after I was discharged from the US Army but now it has developed into chronic obstructive pulmonary disease." There is no evidence of COPD or sleep apnea during service. These disabilities were not shown by the medical evidence until more than 35 years after service. In addition, there is no competent evidence of record showing a relationship between the Veteran's diagnosed COPD or sleep apnea and his military service, to include his presumed herbicide exposure. No medical professional had indicated that the Veteran's sleep apnea and COPD had their onset during active service or are related to any in-service disease, event, or injury, including herbicide exposure. The Board acknowledges the Veteran's assertions that his COPD and sleep apnea were caused by his in-service exposure to herbicides. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), the specific issue in this case, whether COPD and sleep apnea were caused by in-service exposure to herbicides, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." In reaching the conclusion to deny the claims, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for COPD, to include as a result of exposure to herbicides, is denied. Service connection for sleep apnea, to include as a result of exposure to herbicides, is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs