Citation Nr: 1328091 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 10-00 079 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include emphysema. 2. Entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: New Hampshire State Veterans Council WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from February 1966 to February 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. The Veteran was afforded a hearing before a Decision Review Officer (DRO) in September 2009. A transcript of the hearing is of record. In March 2012, the Board remanded this claim for additional development. As discussed below, the Board is satisfied that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The case has been returned to the Board and is ready for further review. The issue of entitlement to a TDIU is addressed in the REMAND that follows the ORDER section of this decision. The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA. FINDINGS OF FACT 1. The Veteran had service in the Republic of Vietnam during the Vietnam era, and is therefore is presumed to have been exposed to Agent Orange or other herbicide agents during that time. 2. The Veteran's chronic obstructive pulmonary disease with emphysema developed subsequent to his discharge from service and is not etiologically related to his active service, to include his exposure to herbicides in service. CONCLUSION OF LAW Chronic obstructive pulmonary disease, to include emphysema, was not incurred in or aggravated by active service, and its incurrence or aggravation on the basis herbicide exposure during service may not be presumed. 38 U.S.C.A. §§ 1110, 1116 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in a letter mailed in July 2007, prior to the initial adjudication of the claim. The record also reflects that service treatment records and all available pertinent post-service medical records have been obtained. In addition, the Veteran has been afforded an appropriate VA examination and an adequate VA medical opinion has been obtained. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Therefore, the Board is satisfied that VA has complied with its duty to assist the Veteran in the development of the facts pertinent to this claim. II. Legal Criteria Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection for disability on the basis that it is attributable to the use of tobacco products during active service is prohibited. 38 U.S.C.A § 1103(a) West 2002); 38 C.F.R. § 3.300(b) (2012). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 38 U.S.C.A. § 1116(a) provides presumptive service connection on the basis of herbicide exposure for specified diseases manifested to a degree of 10 percent within a specified period in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. It also provides presumptive service connection on the basis of herbicide exposure for each additional disease that the Secretary determines in regulations prescribed under this section warrants a presumption of service-connection by reason of having a positive association with exposure to an herbicide agent, and that becomes manifest within the period (if any) prescribed in such regulations in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. Whenever the Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease for the purposes of this section. 38 U.S.C.A. § 1116(b)(1). In making determinations for the purpose of this subsection, the Secretary shall take into account (A) reports received by the Secretary from the National Academy of Sciences under section 3 of the Agent Orange Act of 1991 [note to this section], and (B) all other sound medical and scientific information and analyses available to the Secretary. In evaluating any study for the purpose of making such determinations, the Secretary shall take into consideration whether the results are statistically significant, are capable of replication, and withstand peer review. 38 U.S.C.A. § 1116(b)(2). An association between the occurrence of a disease in humans and exposure to an herbicide agent shall be considered to be positive for the purposes of this section if the credible evidence for the association is equal to or outweighs the credible evidence against the association. 38 U.S.C.A. § 1116(b)(3). Neither chronic obstructive pulmonary disease nor emphysema is among the diseases specified in 38 U.S.C.A. § 1116(a). In addition, the Secretary has not determined, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of either of these disorders in humans. See 38 C.F.R. § 3.309(e). Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Factual Background The Veteran contends that he has COPD due to his exposure to Agent Orange during his service in Vietnam. He has stated that during service his duties included mixing the components of Agent Orange and packaging it for transportation. The service treatment records show that the Veteran was treated in service for an upper respiratory infection in November 1967. At separation in February 1968, the Veteran's chest and lungs were noted to be normal. There is no post-service medical evidence of any pulmonary disorder until many years following the Veteran's discharge from service. Private medical records dated in June 2005 show that the Veteran complained of shortness of breath and reported a medical history of emphysema. He also reported a military and occupational history of chemical exposure. A 40 year history of smoking one to one and a half packs a day also was noted. A chest X-ray showed hyperinflation consistent with COPD. VA records show a diagnosis of COPD beginning in 2007 In October 2012, the Veteran was provided a VA examination in response to his claim. The examiner diagnosed emphysema. Following the examination and review of the Veteran's claims file, the examiner opined that it was less likely than not that the Veteran's pulmonary disorder was incurred in or caused by service. The examiner stated that the service records show only an isolated acute respiratory infection in November 1967. The examiner noted that there was no evidence of any treatment for obstructive lung disease and the exit exam did not reveal any respiratory problems. The examiner noted that the Veteran's contention that his two genetically identical brothers did not develop respiratory disease despite all being smokers and being in Vietnam with less potential exposure to Agent Orange was anecdotal only and not of any scientific significance in regard to the Veteran's condition. With respect to a VA sponsored Army Chemical Corps Vietnam Veterans Health Study which concluded that Vietnam Veterans exposed to high levels of herbicide experienced a higher risk of several medical conditions than non Vietnam Veterans including respiratory conditions, the examiner noted that a follow-up study was being undertaken, but that as of now, COPD, emphysema and other non malignant respiratory conditions are considered by VA to be diagnoses for which there in no established causative relationship to Agent Orange or other herbicides for purposes of presumptive service connection. The examiner found that the Veteran was a cigarette smoker while in service and continued to smoke until May 2011. The examiner stated that it is more likely than not that the COPD is caused by continued lifelong cigarette smoking which has scientifically been well established as a cause of COPD. IV. Analysis Based on his service in Vietnam, the Veteran's exposure to herbicides during service is presumed. See 38 C.F.R. § 3.307(a)(6). However, as noted above, neither chronic obstructive pulmonary disease nor emphysema is subject to presumptive service connection on the basis of herbicide exposure. In fact, with the exception of respiratory cancers, the Secretary has determined that respiratory disorders are not associated with expose to herbicides. 72 Fed. Reg. 32,395 (June 12, 2007). Therefore, service connection is not in order on a presumptive basis. With respect to whether service connection is warranted on a direct basis, the Board notes that that the Veteran was not found to have chronic obstructive pulmonary disease or emphysema in service, his lungs were found to be normal at the time of his discharge from service, and there is no competent evidence indicating that either disorder is related to service, to include his respiratory symptoms in service and his exposure to herbicides in service. As discussed above, the VA physician who examined the Veteran and his pertinent history in October 2012 has opined that the Veteran's pulmonary disability is unrelated to his in-service respiratory symptoms and his in-service herbicide exposure. The opinion is well supported, and there is no contrary, competent opinion of record. The Board has also considered the Veteran's statements to the effect that his respiratory symptoms began in service and have continued to some extent since service. The Board notes that the Veteran has provided varying accounts of his respiratory history. Never the less, even conceding that the Veteran has experienced various respiratory symptoms over the years, the Veteran does not have the required expertise to attribute his symptoms to a particular disorder. The medical evidence shows that his lungs were normal at the time of his discharge from service, and the VA examiner has opined that his current pulmonary disability is unrelated to the symptoms present in service. As previously stated, there is no competent evidence linking his chronic obstructive pulmonary disease or emphysema to his active service. Accordingly, the Veteran's claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Service connection for chronic obstructive pulmonary disease, to include emphysema, is denied. REMAND A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2012). A Veteran is eligible for a rating of TDIU if either one service-connected disability is rated at least 60 percent disabling or multiple service-connected disabilities yield a combined rating of 70 percent (with at least one of those disabilities rated 40 percent or more)). 38 C.F.R. § 4.16(a). Service connection is in effect for ischemic heart disease, which is rated as 60 percent disabling. Therefore, the Veteran meets the minimum schedular criteria for a TDIU. In determining whether a Veteran is indeed unemployable, consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). The Board notes that it may not deny a TDIU without producing evidence, as distinguished from mere conjecture, that a Veteran's disability does not prevent him or her from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995); Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In Friscia, the Court specifically stated that VA has a duty to supplement the record by obtaining an examination, which includes an opinion on what effect the appellant's service-connected disability has on his ability to work. Friscia, 7 Vet. App. at 297 When the Veteran was examined by VA in May 2013, the examiner indicated that the Veteran's ischemic heart disease impacted on his ability to work. The examiner stated that the Veteran would not be capable of continuous physical or any heavy physical labor. The examiner went on to discuss the Veteran's non-service connected COPD. The examiner has not indicated the extent of the impact of the service-connected disorder on the Veteran's ability to work, to include whether the Veteran is totally unemployable due solely to his service-connected heart disorder. While this evidence addresses the Veteran's employability, the record does not include a medical opinion-clearly based on full consideration of the Veteran's documented history and supported by fully-stated rationale-as to whether the Veteran's service-connected disability in and of itself and without regard to his age and/or nonservice-connected disabilities -renders him unable to obtain or retain substantially gainful employment. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the claim. 2. When any indicated record development has been completed, arrange for the Veteran to be scheduled for a VA examination by an examiner with sufficient expertise to determine the nature and severity of the service-connected ischemic heart disease, and its impact on the Veteran's employability. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. The examiner should be requested to provide an opinion concerning the impact of the ischemic heart disease on the Veteran's ability to work, to include whether it is sufficient by itself to render the Veteran unemployable. The physician must provide the rationale for all opinions expressed. 3. The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. The RO or the AMC should also undertake any other development it determines to be warranted 5. Then, the Veteran's claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative must be furnished a supplemental statement of the case and be given the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs