Citation Nr: 1333949 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 09-37 403 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a respiratory disorder, variously claimed as pulmonary emphysema, respiratory failure, or chronic obstructive pulmonary disease (COPD), to include as due to exposure to herbicides (also referred to herein simply as a "respiratory disorder"). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The veteran had active service from February 1969 to September 1970. He served in Vietnam from September 1, 1969 to September 18, 1969. He was reassigned to Korea, where he remained until September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Louisville, Kentucky, Regional Office (RO) of the Department of Veterans Affairs (VA). An expert medical opinion from the Veterans Health Administration (VHA opinion) was solicited. This opinion was received by the Board in July 2013, and the appellant was provided a copy. The Appellant submitted a response in September 2013. FINDINGS OF FACT 1. The Veteran, who served on the ground in Vietnam for slightly less than two months during the Vietnam war period, and who served in Korea during a period when individuals who served near the demilitarized zone (DMZ) are known to have been exposed to herbicides, is presumed to have been exposed to herbicides. 2. The preponderance of the competent and persuasive medical evidence establishes that it is less than likely that the Veteran has a current respiratory disorder etiologically related to his service, or any incident thereof, to include exposure to herbicides. [Continued on Next Page] CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a respiratory disorder, claimed as pulmonary emphysema, respiratory failure, or COPD, to include as due to exposure to herbicides, are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309(e) (2013); Combee v. Brown, 34 F.3rd 1039 (Fed. Cir. 1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In August 2008, soon after the Veteran submitted the July 2008 claim at issue in this appeal, the RO issued a letter which advised the Veteran of the elements of a service connection claim. The letter included information specific to claims related to exposure to herbicides. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in the August 2008 letter. VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). The service treatment records are associated with the claims file. Lengthy VA clinical records are associated with the claims file. Electronic records have been reviewed. The Veteran's Social Security Administration (SSA) disability application file has been obtained and reviewed. That file includes primarily SSA documents and VA treatment records dated in 2008. In May 2013, the Board sought VHA opinion. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The reviewer who conducted the July 2013 review of the claims file assumed that the Veteran had been exposed to herbicides, as set forth in the opinion request from the Board. The reviewer discussed the Veteran's lay statement regarding treatment in service and following service. The reviewer discussed the Veteran's history and the current findings, and concluded that it was "highly unlikely" that a current respiratory disorder was due to exposure to herbicides. The reviewer also opined that the Veteran's current respiratory disorder, COPD, is due to tobacco use. The reviewer explained as his rationale the Veteran's known history of tobacco use. Considered in light of the lengthy records of VA treatment rendered during the course of this appeal, the reviewer's report is more than adequate upon which to base a decision with regard to the Veteran's claim. See 38 C.F.R. § 3.327(a) (2013); Caffrey v. Brown, 6 Vet. App. 377 (1994). VA fulfilled its VCAA duties to notify and to assist the Veteran in the evidentiary development of the claims addressed on the merits herein, and thus no additional assistance or notification is required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board will therefore proceed with the adjudication of this appeal. Relevant Laws and Regulation, Claim for Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Where a Veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as diabetes mellitus, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. The respiratory disorders diagnosed in the Veteran's case, to include pulmonary emphysema, respiratory failure, and COPD, are not among the disorders recognized as chronic under the applicable statutory and regulatory provisions. 38 U.S.C.A. § 1101; 38 C.F.R. § 3.309(a). Therefore, no further discussion of provisions authorizing presumptive service connection for chronic diseases is required. A Veteran who, during active military, naval or air service, served in Vietnam during the Vietnam era, and has a disease listed at 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, such as Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). VA also recognizes exposure to herbicides occurred during certain periods of service in Korea. In this case, the Veteran served in Vietnam during a period in which exposure to herbicides may be presumed, and also served in Korea during a period when exposure to herbicides is known to have been possible. Where a Veteran was exposed to an herbicide agent and manifests certain disorders, service connection may be presumed. 38 C.F.R. § 3.307(a)(6)(ii). The presumption may be rebutted by affirmative, though not necessarily conclusive, evidence to the contrary. 38 U.S.C.A. § 1113(a); 38 C.F.R. § 3.307(d). Diseases associated with herbicide exposure for purposes of the presumption include respiratory cancers. 38 C.F.R. § 3.309(e). However, the respiratory disorders diagnosed in the Veteran's case, to include pulmonary emphysema, respiratory failure, and COPD, are not disorders which may be presumed related to exposure to herbicides. Where a Veteran is not entitled to service connection under the presumptive provisions, this does not preclude direct service connection based on exposure to herbicides. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In other words, a regulatory presumption is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. Lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Facts and Analysis The Veteran contends that he is entitled to service connection for a current respiratory disorder. The Veteran's service treatment records reflect that he was treated for a sore throat in October 1969. During the remainder of his service, that is, prior to service discharge in September 1970, the Veteran was treated for a variety of disorders, including complaints of headaches, stomach pain, and nervousness. No notation of diagnosis or treatment of a respiratory disorder is apparent in these records. No respiratory disorder was diagnosed at the time of separation examination in September 1970; the Veteran's respiratory tract was described as normal. There is no record that the Veteran was treated for a respiratory disorder after his service during the interval from 1970 to 2000. VA treatment records dated in 2003 reflect that the Veteran was admitted to a private hospital in August 2003 for community-acquired pneumonia. At that time, among other diagnoses, the Veteran was found to have environmental allergies, a tobacco use disorder, and emphysema. The Veteran noted that he had cut his use of cigarettes down to one pack per day following hospitalization for pneumonia. In March 2005, the Veteran was noted to have tobacco-induced shortness of breath. The Veteran was afforded Agent Orange registry examination in December 2005. That examination disclosed no diagnosis of a disorder which may, under VA regulations, be presumed to be related to exposure to herbicides. In May 2008, the Veteran was admitted for in-patient treatment of pneumonia and exacerbation of COPD. He developed respiratory failure and required support on a ventilator for approximately a month. In September 2008, the Veteran sought disability benefits from the Social Security Administration. At that time, the Veteran stated he was unable to return to his self-employment as a plumber. Records from SSA consist primarily of VA records; a computerized SSA file (CD) is associated with the record. The Veteran contends that he had a chronic undiagnosed cough in service which became chronic, persisted after the Veteran's discharge and to the present, and may be related to a current respiratory disorder. In May 2013, the Board requested VHA opinion regarding the etiology and onset of current respiratory disorders. In July 2013, the Board received the requested VHA opinion. The examiner stated that it was "[h]highly unlikely" that the Veteran has a current respiratory disorder due to exposures in service. In particular, the reviewer stated that the Veteran "suffers from COPD due to his tobacco smoking." The reviewer also stated that herbicides have never been associated with COPD, noting that chronic asthma might result from herbicide exposure, but further noting that the Veteran did not have symptoms of asthma during or immediately following military service. The Veteran's representative argues, in a September 2013 presentation, that the examiner's statement that herbicides have never been associated with COPD is incorrect. The Veteran's representative cites to a study apparently published in the Annals of Epidemiology in 2010. The Veteran's representative notes that the study compared Army Chemical Corp Veterans, who handled and/or sprayed herbicides, with non-Vietnam peers. The Veteran's representative contends that the study shows that Veterans who served in the Army Chemical Corp had significant excess mortality due to COPD and other respiratory diseases, when compared to other groups. The Veteran's representative implies that, since the reviewer's opinion does not discuss this study, and states that herbicides are not associated with COPD, the reviewer is in error and the opinion should not be considered in determining the preponderance of the evidence. However, the Veteran's representative does not contend that the Veteran served in the Army Chemical Corp or handled and/or sprayed herbicides. The Veteran's DD 214 shows that the Veteran was an infantryman, not a member of the Army Chemical Corp. Moreover, the representative correctly states that study itself warns that the study results, such as the excess mortality due to COPD and respiratory disorders in member s of the Army Chemical Corp, cannot be generalized to Vietnam veterans as a whole. Since the report of this specialized and specific study states that the results cannot be generalized to include all Vietnam Veterans (or other Veterans who may be presumed to have been exposed to herbicides at locations other than in Vietnam), this study report does not conflict with the reviewer's opinion in a manner that reduces the probative value of the reviewer's opinion. The study discussed by the Veteran's representative is not applicable to this case. The reviewer's opinion is competent and credible as to the facts in this case, and is the most probative and persuasive evidence of record. As the opinion is highly unfavorable to the Veteran's claim, the preponderance of the evidence weighs against the claim. The provisions of 38 U.S.C.A. § 1103 prohibit an award of service connection for disability which is the result of disease or injury attributable to the use of tobacco products during a veteran's active service. By its terms, 38 U.S.C.A. § 1103 is applicable to claims filed after June 9, 1998. See 38 C.F.R. § 3.300. As this claim was presented after June 9, 1998, 38 U.S.C.A. § 1103 is applicable, and the Board is precluded from granting service connection for a tobacco use disorder or for a respiratory disorder resulting from nicotine addiction incurred in service. No further discussion of the Veteran's tobacco use disorder is required. In summary, the Veteran does not currently manifest a chronic disorder which may be presumed service-connected if manifested within an applicable presumptive period, and does not currently manifest a disorder which may be presumed to be the result of exposure to herbicides. The Veteran has not provided medical evidence which links his herbicide exposure to a current respiratory disorder, so the Veteran does not meet the criteria for service connection set forth in Combee. The reviewer's opinion that the Veteran's current respiratory disorder is due to tobacco smoking establishes that the Veteran's current respiratory disorder is not linked to a sore throat or cough treated in service, or any other incident of service. There is no reasonable doubt that may be resolved in the Veteran's favor. 38 U.S.C.A. § 7105(b). The claim must be denied. ORDER The appeal for service connection for a respiratory disorder, variously claimed as a pulmonary emphysema, respiratory failure, or chronic obstructive pulmonary disease (COPD), to include as due to exposure to herbicides, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs