Citation Nr: 1335227 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 08-18 407 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to in-service herbicide exposure or as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for psychiatric disability, claimed as dementia, to include as due to in-service herbicide exposure or as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from February 1966 to February 1969. The appeal comes before the Board of Veterans' Appeals (Board) from a June 2006 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The Veteran testified during a teleconference with a Decision Review Officer (DRO) at the RO in April 2007. A transcript of the teleconference is of record. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. When this case was before the Board in April 2012, it was decided in part and remanded in part. FINDINGS OF FACT 1. COPD was not present until many years after the Veteran's discharge from service, is not etiologically related to service, and was not caused or permanently worsened by service-connected diabetes mellitus. 2. A psychiatric disability, to include dementia, has not been present at any time during the pendency of the Veteran's claim. CONCLUSIONS OF LAW 1. COPD was not incurred in or aggravated by active service, its incurrence or aggravation during such service may not be presumed; and it is not proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116 (West 2002 & Supp. 2012); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for a psychiatric disability are not met, on direct, secondary, or presumptive bases38 U.S.C.A. §§ 1101, 1110, 1112, 1116 (West 2002 & Supp. 2012); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 Veteran was provided all required notice by letters sent in June 2006 and October 2010. Although the Veteran was not provided complete notice until after the initial adjudication of the claims, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claims. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of either claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The record also reflects that the Veteran's service treatment records, VA treatment records, and private treatment records have been obtained, to the extent authorization was provided. Neither the Veteran nor his representative has identified any additional, outstanding evidence that could be obtained to substantiate either claim. The Board is also unaware of any such evidence. The Veteran was also provided appropriate VA examinations in response to his claims. The Appeals Management Center (AMC) also substantially complied with the Board's April 2013 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). This consisted of obtaining additional treatment records, providing examinations addressing the claimed disabilities and their etiology. In sum, the Board is also satisfied that VA has complied with its duty to assist the Veteran in the development of the facts pertinent to these claims. Accordingly, the Board will address the merits of the claims on appeal. II. Legal Criteria Service connection may be granted for a disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). During the pendency of these claims, 38 C.F.R. § 3.310 was amended, effective October 10, 2006. The amendments to this section are not liberalizing. Therefore, the Board will apply the former version of the regulation. COPD and psychiatric disabilities are not among the diseases subject to presumptive service connection on the basis of herbicide exposure. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32,395 -32,407 (Jun. 12, 2007); see also Notice, 74 Fed. Reg. 21258 -21260 (May 7, 2009); see also Notice, 75 Fed. Reg. 32540 (June 8, 2010). Notwithstanding the foregoing, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to Agent Orange. Brock v. Brown, 10 Vet. App. 155 (1997). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d. 1372 (2007). 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 and Analysis The Veteran contends that he is entitled to service connection for a respiratory condition (diagnosed as COPD) based on his exposure to Agent Orange in service or as due to his diabetes mellitus which was due to his exposure to Agent Orange in service. He has also at times asserted that the condition began in Vietnam or following his return from Vietnam or following service. The Veteran also contends that he is entitled to service connection for a psychiatric disorder (claimed as dementia) because it is due to Agent Orange exposure or diabetes mellitus. The Veteran's service treatment records are negative for evidence of a respiratory disorder or psychiatric disorder, to include dementia. Similarly, there is no medical evidence suggesting the presence of the claimed disorders until years after the Veteran's discharge from service. In his April 2007 telephonic hearing with the DRO, the Veteran asserted that he had breathing problems after he was separated from service in 1969, but added that he did not go to a doctor for those problems because he was not one to seek medical care. However, also during that hearing the Veteran conceded that "to be honest" he was "not really sure" when his breathing problems began. (transcript, page 7) Thus, by the Veteran's own admission, he cannot date the onset of his claimed respiratory disorder to service. Similarly, at his May 2013 VA respiratory disease examination, the Veteran asserted that he had respiratory problems for at least the prior 15 years, but 15 years prior to that examination is 29 years following service. Thus, the history provided by the Veteran generally does not place the Veteran's respiratory symptoms within years proximate to service. Hence, the Veteran's statements do not support the onset of a respiratory disorder in service. Upon a VA respiratory examination for compensation purposes in September 2007, the examiner noted the Veteran's history of respiratory difficulties as well as his long history of tobacco use. The examiner assessed COPD and opined that it was most likely due to "chronic and long-standing tobacco abuse history." With regard to any association with Agent Orange exposure, the examiner cited to the Institute of Medicine report indicating that there was insufficient evidence to determine whether Agent Orange exposure had a causal association with development of lung disease. See Comm. to Review the Health Effects in Vietnam Veterans of Exposure to Herbicides, Inst. of Medicine of the Nat'l Academies, Veterans and Agent Orange: Update 2002 (Fourth Biennial Update 2003) (noting that the remaining three categories are "Limited or Suggestive Evidence of an Association," "Inadequate or Insufficient Evidence to Determine Whether an Association Exists," and "Limited or Suggestive Evidence of No Association"). The Board notes that Title 38, section 1116(b)(1), United States Code, directs the Secretary of VA to "prescribe regulations providing that a presumption of service connection is warranted for [a] disease" when a positive statistical association exists between Agent Orange exposure and the occurrence of that disease in humans. The statute further provides that a positive association exists when "the credible evidence for the association is equal to or outweighs the credible evidence against the association." In making this determination the Secretary is to take into account reports from the National Academy of Sciences (NAS) under section 3 of the Agent Orange Act of 1991 as well as all other available sound medical and scientific information. 38 U.S.C. § 1116(b)(3) . To carry out this directive, the NAS convened an Institutes of Medicine (IOM) committee to answer "whether a statistical association with herbicide exposure exists." Agent Orange Act of 1991, Pub.L. No. 102-4, 105 Stat. 11 § 3(d)(1)(A) (codified as amended at 38 U.S.C. § 1116 ). The IOM provides an answer to the question of statistical association in its biannual "Agent Orange Updates." Addressing diabetes mellitus, the September 2007 respiratory examiner noted that the Veteran's respiratory condition had been symptomatic long prior to his diagnosis of diabetes mellitus. The examiner also stated that "reasonable medical knowledge of the causes of lung disease" did not reflect that diabetes mellitus was a cause of lung disease. The examiner added that it was also not clinically feasible that the Veteran's diabetes mellitus had aggravated his lung disease, explaining that the Veteran's longstanding lung disease was due to his history of smoking. The Veteran was afforded a VA diabetes examination for compensation purposes in September 2008. That examiner noted that the Veteran's diabetes mellitus was poorly controlled, and that the Veteran had peripheral neuropathy of the lower extremities associated with the diabetes mellitus. The examiner did not associate any respiratory disorder or any neuropsychiatric disorder with the diabetes mellitus. Similarly, treatment records reflect ongoing care for the Veteran's diabetes mellitus, as well as for respiratory difficulties, but do not reflect that treating medical practitioners attributed the Veteran's COPD to his diabetes mellitus. In addition, the treatment records do not show that the Veteran has been diagnosed with any psychiatric disorder. Following an October 2010 VA examination addressing the Veteran's respiratory disorder, the examiner diagnosed COPD and tobacco abuse. The examiner stated that the Veteran's respiratory problems were associated with these diagnoses, and they were manifested by shortness of breath on moderate exertion. At a May 2013 VA respiratory disorders examination, the Veteran reported smoking up to one-and-a-half packs of cigarettes per day since his teens, that he had quit a few times since then, and that he was now down to smoking one-half pack per day. The examiner noted that the Veteran was also exposed to second-hand smoke from his wife's smoking (his wife of 25 years). The May 2013 respiratory examiner noted the Veteran's herbicide exposure history in Vietnam, but opined that it was not at least as likely as not that the Veteran's diagnosed COPD was due to that herbicide exposure. The examiner explained that the Veteran's extensive tobacco use was the causal factor resulting in his COPD. Expanding on that point, the examiner stated that it has "time and again been proven" that "cigarette smoking" is "THE key factor in the development of severe lung conditions to include COPD and emphysema." (emphasis in original) Thus, VA examinations were provided in September 2007, October 2010, and May 2013 addressing the Veteran's respiratory condition, diagnosed as COPD, and these examiners were specifically directed to address any causal link between herbicide agent exposure or diabetes mellitus, and a respiratory condition. As discussed above, none of these examiners identified any such causal link, and the examiners in September 2007 and May 2013 specifically stated that there was no medical support for such a link, including no support for aggravation of COPD by diabetes mellitus. The Veteran, while he is competent to address what he was told by a treating physician, has here asserted that a submitted medical record supported the causal link between diabetes mellitus and his COPD. However, the Board has found no such medical record, and hence the existence of such medical support is not thereby supported by the evidentiary record. The Veteran was afforded a VA mental disorders examination in May 2013. The examiner reviewed the Veteran's history. The examiner noted current and past psychosocial and environmental problems. Current difficulties included health problems and minimal social isolation. Potential past difficulties were noted to include service in Vietnam, a long-ago failed marriage (though with the Veteran's current marriage of 25 years duration), and loss of a daughter years ago to a cocaine overdose. The May 2013 the examiner noted the Veteran's report of some short-term memory difficulties, such as forgetting names, directions, and recent events, and his report of some current difficulty adapting to stressful circumstances. However, the examiner reviewed the clinical records and conducted a psychiatric interview, neither of which revealed to the examiner any current psychiatric disorder. The Veteran only had minimal symptoms not rising to a disorder. Specifically, the Veteran had reported feeling down two to three days per week, especially in the winter, having some mood swings, and having the noted memory issues. The May 2013 psychiatric examiner noted that the Board's remand instructions, and reviewed past clinical records. Treatment records were noted to include some family medical center records. A December 2006 treatment note indicates that the Veteran had reported that he suffered from states of confusion. The examiner did conclude that the Veteran's minimal psychiatric symptoms were at least as likely as not attributable to his physical conditions, including his diabetes mellitus and his COPD, explaining that depressed oxygen levels could result in mild memory impairment, and that poor glucose control could affect memory and cognition, leading to what the Veteran described as confusion. However, the May 2013 examiner did not find or diagnose dementia, and did not diagnose any other psychiatric or cognitive disorder. While the Veteran in a February 2010 statement asserted that in a previous letter his treating physician had attributed his COPD to his diabetes mellitus, no such causal medical opinion has been found in the medical records contained within the claims files. However, as discussed herein, VA examinations were obtained specifically to address this question, and the opinions obtained are against diabetes mellitus causing or aggravating the Veteran's COPD. The Board finds the reports of the VA examinations addressing the Veteran's COPD conducted in 2007, 2010, and 2013, and the VA examination in May 2013 addressing the Veteran's claimed psychiatric disability, to be supported by the balance of the lay and medical evidence of record. The medical opinions provided were based on review of the record, consideration of medical knowledge, and sound rationale. The September 2007 and May 2013 respiratory examiners, in particular, addressed the absence of medical support for a causal link between herbicide exposure or diabetes mellitus and claimed COPD, the relevant chronology of COPD with onset prior to the Veteran's diabetes mellitus, and the absence of medical support for aggravation of COPD by diabetes mellitus. The May 2013 psychiatric examiner carefully considered the Veteran's history and current symptoms, and arrived at the well-reasoned conclusion that a current psychiatric disorder or current cognitive disorder was not present. With respect to whether service connection for COPD is warranted on a direct basis, the Board notes that the weight of the evidence is against COPD being present in service or until many years thereafter, as discussed above. In addition, there is no competent evidence of a nexus between the COPD and the Veteran's active service, to include his exposure to herbicides in service. There is also no competent evidence of the Veteran's diabetes mellitus having caused or aggravated his COPD, with VA examination opinion against both causation and aggravation. While the Veteran might sincerely believe that his COPD is due to his exposure to herbicides or is due to his diabetes mellitus, his lay opinion concerning these matters requiring medical expertise is of no probative value. Similarly, while the Veteran might sincerely believe he has a psychiatric or cognitive disorder, there is no indication that he possesses the expertise required to render a psychiatric diagnosis. In any event, his lay opinion is clearly outweighed by the medical evidence showing that he does not have a psychiatric disorder. Accordingly, the Board must conclude that service connection is not warranted for either of the claimed disabilities. In reaching these decisions, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to these claim because the preponderance of the evidence is against the claims. ORDER Entitlement to service connection for COPD, to include as due to in-service herbicide exposure or as secondary to service-connected diabetes mellitus, is denied. Entitlement to service connection for psychiatric disability, claimed as dementia, to include as due to in-service herbicide exposure or as secondary to service-connected diabetes mellitus, is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs