Citation Nr: 1338496 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 08-02 588 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a respiratory disability, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. This case was previously before the Board in July 2011 and was remanded for additional development. For the reasons discussed below, the Board finds that there has been substantial compliance with its prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran has a current diagnosis of chronic obstructive pulmonary disease (COPD)/emphysema. 2. The Veteran's respiratory disability is not causally or etiologically related to service, to include as due to herbicide exposure. 3. The Veteran's respiratory disability is not proximately caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a respiratory disability have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her 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) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). VA correspondence dated in November 2006 advised the Veteran of the necessary elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Specifically, the Veteran was informed of what evidence was required to substantiate the claim for service connection, of his and VA's respective duties for obtaining evidence. It also notified him that a disability rating and effective date would be assigned, in the event of award of the benefit sought, as required by the Court in Dingess/Hartman. The November 2006 VA notice was provided prior to the March 2007 initial adjudication, in compliance with Pelegrini. The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The Board concludes that VA's duty to assist has also been satisfied. The Veteran's service treatment records and post service VA and private medical records, as well as his lay statements, are in the file. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In compliance with the Board's July 2011 remand, VA outpatient treatment records dated from November 2006 to September 2011, including a December 7, 2006 assessment of COPD by Dr. Paul Reagan and a copy of the Veteran's August 2007 Agent Orange Registry examination report, were obtained and associated with the claims file. Private treatment records from St. Francis Hospital dated from September 2001 to July 2007 were also obtained and associated with the claims file. The Veteran was also provided an appropriate VA examination in August 2011 to determine the nature and etiology of any current respiratory disability. Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran). The Board finds that, the VA examination and opinion are adequate, as the opinion is predicated on a review of his claims file, a clinical examination of the Veteran and the reported history by the Veteran. The opinion considers the pertinent evidence of record, to include the Veteran's lay statements, and a rationale was provided for the opinion proffered. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Based on the foregoing, the Board finds the RO substantially complied with the Board's July 2011 remand directives. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). The Veteran asserts that he has trouble breathing, and argues that it is related to his military service, either through exposure to Agent Orange (herbicides), or to sulfuric fumes which he claims to have encountered while working in the battery shop in service. In written statements dated in October 2006 and December 2006, the Veteran reported that he developed trouble with breathing for many years. He stated that he had been treated for allergies and asthma but two asthma tests in the previous 5 years were negative; however, that he was diagnosed with emphysema in December 2006. He further stated that anxiety, which is a symptom associated with his service-connected posttraumatic stress disorder (PTSD), as well as cold weather, increased his respiratory symptoms. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2013). 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. See 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Additionally, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307. The following diseases are deemed associated with herbicide agent exposure, under VA law: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, diabetes mellitus (Type II), Hodgkin's disease, ischemic heart disease, hairy cell leukemia and other chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson' disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309; see Final Rule, 78 Fed. Reg. 54,763-65 (September 6, 2013). A presumption of service connection based on exposure to herbicides to include Agent Orange used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which VA has not specifically determined a presumption of service connection is warranted. See 72 Fed. Reg. 32,395 (2007). Service treatment records include an October 1966 in-service chest X-ray, showing heavy calcification on the Veteran's left hilar nodes; however, the chest otherwise appeared normal. A clinical record dated the same date as the chest X-ray stated that on physical examination, the Veteran's chest and lung fields were clear to percussion and auscultation. His November 1967 service separation examination noted that on clinical examination, the Veteran's lungs and chest were normal. In a January 1987 letter, a private pulmonologist, Dr. Richard Bregman, stated that the Veteran had a history of "sinus drainage" for several years associated with some chest tightness and mild dyspnea. The Veteran reported chronic cough productive of a scant amount of sputum. It was noted that he had a normal spirometry. Dr. Bregman stated that the Veteran had chronic sinusitis and chronic bronchitis, which was secondary to his sinus condition. In a November 2001 private treatment report, the Veteran complained of tightness in the chest, shortness of breath and wheezing. He stated that he was exposed to asbestos in the past. The assessment was shortness of breath. In a December 2002 private treatment report, the Veteran stated that he noted wheezing and shortness of breath when he got exposed to cold air. The impressions were reactive airways disease and obstructive sleep apnea syndrome. In a March 2003 private treatment report, the Veteran stated that his asthma had been really bad recently and that cold air really aggravated the condition. He complained of coughing, shortness of breath, wheezing, and chest tightness, which had lasted for the past 6 months. The assessments were asthma without status asthmaticus, and acute bronchitis, not otherwise specified. A December 2003 private treatment report stated that the Veteran had been treated for asthma but the test done for asthma was negative. A December 2005 VA primary care note reflects the Veteran's complaints of sinus and breathing problems. A July 2006 VA treatment report indicated that the Veteran, with chronic sinus congestion, had numerous evaluations for asthma, which were negative. The Veteran stated that he could not breathe at night without Xanax. A November 2006 private treatment report reflects no abnormal respiratory findings but the Veteran complained of asthma. In a December 2006 VA primary care report, Dr. Reagan noted that the Veteran has recurrent episodes of cough and sputum consistent with COPD (prior smoker) and recurrent problems with anxiety. The Veteran stated that he had anxiety around coughing spells late in the morning causing dyspnea. In a March 2007 VA treatment report, the Veteran stated that he was told that he did not have COPD but continued to have recurrent episodes of dyspnea and wheezing with increased anxiety. His active problems list included an assessment of COPD. A June 2007 private treatment report reflects that review of the Veteran's respiratory system was negative for COPD, lung cancer, pneumonia, hemoptysis, tuberculosis and cough. The impression was dyspnea. In an August 2007 VA Agent Orange Registry examination report, the Veteran's chief complaint was COPD. Review of the respiratory system revealed no cough, hemoptysis, or asthma but showed emphysema and shortness of breath. The assessment was COPD. VA treatment reports dated in October 2007 and December 2008 reflect assessments of COPD. The Veteran underwent a VA examination in August 2011. The VA examiner indicated that the claims file was reviewed and the history provided by the Veteran was considered accurate. The Veteran reported that the onset of his respiratory condition was in 1996. He stated that he had more trouble breathing due to winter weather and had gotten more colds in the past 15 years than he used to get. He believed that his increased infections and throat problems and sinus drainage were related to exposure to Agent Orange. He stated that it was really cold and respiratory infections and throat trouble that he had been referring to rather than breathing trouble. He reported that he smoked cigarettes from the age of 17 until 34. The Veteran stated that he could not say that he got more infections when he had problems his service-connected disabilities; rather it was the other way around, i.e., when he got a chest infection he had more problems with his arthritis and knees. He did not believe that his anxiety or PTSD had anything to do with getting increased respiratory infections in the winter and stated that the PTSD did not seem to affect the breathing problems. X-ray of the chest revealed no acute cardiopulmonary disease. A follow-up pulmonary function test, conducted in September 2011, showed normal ventilatory studies. No respiratory condition was diagnosed. The examiner concluded that "after a review of medical records, taking a history, and performing a physical examination, the [Veteran's] emphysema is less likely as not permanently aggravated [by] or a result of any event and/or condition that occurred and/or expressed in-service[,]" including PTSD. The examiner explained that the natural progression was not altered or worsened by any condition that occurred and/or expressed during active service. In arriving this conclusion, the examiner noted that the Veteran described sinus and throat irritation as a result of climate changes rather than any chronic lung condition and he stated that he did not believe that his PTSD had any relation to his throat irritation or his getting infections in the wintertime more in recent years. The examiner further noted that the Veteran's getting more respiratory infections in recent years than in the past was related to changes in his immune system and normal aging. Finally, the examiner opined that the relationship with more infections in his respiratory tract was at least as likely as not related to normal aging and his past history of smoking with emphysema and not related to PTSD. The record reflects that the Veteran served a tour of duty in Vietnam during active duty service. The Veteran is therefore presumed to have been exposed to herbicide agents, to include Agent Orange. 38 U.S.C.A. § 1116(f). Here, the issue presented is whether the Veteran's current respiratory disability is related to his military service on a direct or presumptive basis, or on a secondary basis. The Veteran has a current diagnosis of COPD/emphysema. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). To that effect, VA treatment records dated from December 2006 to December 2008 reflect diagnoses of COPD and emphysema. Although the August 2011 VA examiner diagnosed no respiratory condition at the examination, the examiner referenced to the Veteran's history of emphysema. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that service connection may be warranted for a disability if it existed at any point during the appeal period, even if it is no longer present.). Therefore, resolving the doubt in the Veteran's favor, the Board finds that the requirement of a current disability is met in this case. However, as COPD/emphysema is not among those diseases presumptively linked to herbicide exposure, the Veteran's current COPD/emphysema would not warrant service connection on a presumptive basis based on Agent Orange exposure. The Board notes that, although the Veteran is presumed to have been exposed to herbicides during service, a finding of service connection by presumption is not warranted. The Veteran has been diagnosed with COPD and emphysema. However, these are not among the types of conditions contemplated for presumption under 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. 21,258 -21260 (May 7, 2009); see also Notice, 75 Fed.Reg. 32540 (June 8, 2010); Notice, 75 Fed.Reg. 81332 -81335 (December 27, 2010). As the Board finds that the Veteran is not entitled to service connection on the basis of presumption, the Veteran must prove that a disorder resulting in disability is, in fact, causally linked to such exposure. See Brock v Brown, 10 Vet. App. 155 (1997); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994), citing 38 U.S.C.A. §§ 1113(b) and 1116, and 38 C.F.R. § 3.303. Notwithstanding the foregoing, the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 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 United States Court of Appeals for Veterans Claims has specifically held that the provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). However, service connection is not warranted on a direct or secondary basis because the evidence fails to establish a nexus between the Veteran's current respiratory disability and his service or a service-connected disability. The Veteran's service treatment records are negative for any respiratory disorder. As noted above, an October 1966 in-service chest X-ray showed heavy calcification on the Veteran's left hilar nodes, but the clinical record stated that on physical examination, the Veteran's chest and lung fields were clear to percussion and auscultation, and no respiratory diagnosis was noted. Further, the Veteran's November 1967 service separation examination noted that on clinical examination, the Veteran's lungs and chest were normal. As such, a chronic respiratory condition was not shown in service. Nor does the Veteran contend that he was treated for or diagnosed with a respiratory disorder in service. In this regard, he gave a history of a respiratory condition since 1996 at the August 2011 VA examination. Additionally, there is no competent opinion of record as to whether the Veteran's current respiratory disability is related to his active service, to include his in-service exposure to Agent Orange, or to a service-connected disability. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is prohibited from substituting its own medical judgment in place of the opinions of competent medical professionals). Although the Veteran claims that his respiratory disability is related to exposure to Agent Orange, the Board concludes in this case that a layperson without medical training, such as the Veteran, is not qualified to render medical opinions regarding the etiology of a respiratory condition. In certain unique instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, the cause of respiratory condition, in relation to Agent Orange exposure, is not a simple question that can be determined based on mere personal observation by a lay person. See Jandreau, 492 F.3d at 1376-77; see also Davidson, 581 F.3d at 1316. The Board finds that the question of whether the Veteran's exposure to Agent Orange caused his current respiratory disability does not lie within the range of common experience or common knowledge, but requires medical experience or knowledge. It is not shown that the Veteran is otherwise qualified through specialized education, training or experience to offer a medical opinion as to the etiology of his respiratory disability, and therefore his assertions that herbicide exposure in service was a relevant causative factor for his current respiratory disability is not competent evidence. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The only competent opinion of record as to whether the Veteran's current respiratory disability is related to his active service or a service-connected disability is negative to his claim. The August 2011 VA examiner opined that after a review of medical records, taking a history, and performing a physical examination, the Veteran's emphysema is "less likely as not" permanently aggravated by or caused by any event in service and/or any service-connected condition, including PTSD. In support of this opinion, the examiner noted based on the history, the Veteran did not believe that his PTSD had any relation to his respiratory condition or his increased infections in the wintertime in recent years, which was believed to be irritation as a result of climate changes. The examiner further noted that the Veteran's increased infections in the respiratory tract in recent years were related to changes in his immune system and normal aging, as well as his past history of smoking with emphysema. There is no controverting medical opinion of record. As such, absent a probative medical nexus, the criteria for service connection are not met in this case. Davidson, 581 F.3d at 1315-16. For that reason, service connection for a respiratory disability is not warranted. Because COPD/emphysema is not among those diseases presumptively linked to herbicide exposure, and the evidence of record does not relate the Veteran's current respiratory disability to his military service, including exposure to Agent Orange, the preponderance of the evidence is against his claim for service connection. As such, the benefit of the doubt doctrine is not applicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a respiratory disability is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs