Citation Nr: 1432361 Decision Date: 07/18/14 Archive Date: 07/22/14 DOCKET NO. 07-16 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD)/emphysema, chronic asthma, and pulmonary disease due to in service asbestos exposure. 2. Service connection for ischemic heart disease, to include as a result of in-service herbicide exposure. REPRESENTATION Appellant represented by: Michael R. Viterna, Attorney at Law ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1955 to March 1980. These matters come to the Board of Veterans' Appeals (Board) from June 2006 and March 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In January 2011, the Board denied the Veteran's respiratory claim that arose from the June 2006 rating decision. Based on lay statements by the Veteran, the Board determined the issue did not include consideration of COPD/emphysema and instead focused only on chronic asthma and asbestosis. Thereafter, the Veteran appealed the decision to the Court of Appeals for Veterans Claims (Court) and in a July 2012 memorandum decision the Court vacated the decision and remanded the claim to the Board for reconsideration as to whether evidence had been received sufficient to reopen the claim for service connection for COPD/emphysema. Subsequently, the Board reopened the claim to include COPD/emphysema and remanded it to the RO in May 2013 for issuance of a statement of the case. The Board finds that the remand directive was completed and a new remand is not necessary to comply with the holding in Stegall v. West, 11 Vet. App. 268 (1998). As explained below, the Board is granting service connection for a respiratory disability on a direct basis; therefore, the Board will not discuss other theories of service connection in this decision, to include exposure to asbestos. In March 2011, the RO denied the Veteran's ischemic heart disease claim. The Veteran filed a timely notice of disagreement in October 2011 to initiate his appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's service treatment records document treatment for various respiratory symptoms including chronic cough; acute upper respiratory infections; complaints of trouble breathing at night; bronchitis; a history of shortness of breath and pain or pressure in the chest; colds and flu symptoms and a productive cough. 2. On his March 1980 separation examination, the Veteran reported a history of sinusitis, hay fever, asthma, shortness of breath, pain or pressure in the chest, and chronic cough; examination of his lungs and chest on separation was clinically normal, and his chest X-ray was within normal limits. 3. On VA examination in May 1981, fourteen months after the Veteran's separation from service, the diagnosis was chronic bronchitis and suspect pulmonary emphysema, associated with a very mild obstructive ventilatory defect . 4. It is at least as likely that the Veteran's current respiratory disability, to include emphysema and COPD, began during his 25 years of military service from 1955 to 1980 as it is that it began sometime in the 14 months after separation from service in March 1980 until the diagnosis was made in May 1981. 5. The Veteran has a current diagnosis of ischemic heart disease. 6. Personnel records indicate the Veteran served aboard the U.S.S. St. Paul in September 1970 when it was anchored in Da Nang Harbor; a List of Ships compiled by VA indicates small boats were sent ashore during the time the Veteran was serving on the ship and the Veteran has provided lay evidence of accompanying an Officer ashore during that time period. 7. Exposure to herbicides in service can be presumed and as such, service connection for ischemic heart disease can be presumed under VA regulations. CONCLUSIONS OF LAW 1. Resolving the benefit of the doubt in the Veteran's favor, the criteria for service connection for a respiratory disability, to include emphysema and COPD, have been met. 38 U.S.C.A. §§ 1110, 1131, 1137, 5107 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.300, 3.303, 3.307, 3.309 (2013). 2. The criteria for service connection for ischemic heart disease, due to in-service herbicide exposure, have been met. 38 U.S.C.A. §§ 1101(3), 1110, 1112(a), 1113, 1116, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board is granting in full the benefits sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and need not be discussed further. II. Service Connection Generally Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. Service connection may also be granted for any disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). )). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). III. Entitlement to service connection for a respiratory disorder The Veteran's service treatment records document intermittent treatment for various respiratory symptoms. In November 1955, he reported a history of whooping cough. In January 1956, he reported a history of whooping cough and chronic cough. In February 1956, April 1957, and March 1958, he was treated for complaints relating to acute upper respiratory infections, which included a cold, a cough, a sore throat, and general malaise. In January 1959, he was treated for complaints of trouble breathing at night. Examination at the time revealed a few crackling rales in his left anterior chest and the impression was bronchitis. In January 1961, he was treated for acute bronchitis. In October 1961, he was treated for a cold and sore throat. In April 1963, he was treated for a sore throat and a cough that produced yellow sputum. In August 1964, he reported a history of whooping cough and chronic cough. In September and December 1964 and April and October 1966, he was treated aboard ship for a cold. During hospitalization in March 1971, the Veteran reported having a long history of a productive cough with scant yellow phlegm. In May 1974, he reported a history of having frequent colds, shortness of breath, and chronic cough. In September 1976, he reported a history of shortness of breath and pain or pressure in the chest. In February 1977, he was treated for an acute upper respiratory infection. In February 1980, he complained of having flu symptoms and a productive cough. At the time, he was noted to have a smoking habit with a consumption of two cigarette packs per day and was advised to discontinue smoking. On his March 1980 separation examination, the Veteran reported a history of sinusitis, hay fever, asthma, shortness of breath, pain or pressure in the chest, and chronic cough. Examination of his lungs and chest on separation was clinically normal, and his chest X-ray was within normal limits. Private lay witness statements from the Veteran's spouse and fellow servicemen indicate, in pertinent part, that the Veteran was observed by these witnesses to have frequent colds and display symptoms of frequent coughing, shortness of breath, breathing difficulties, and use of a medicated inhaler during active duty. Post-service medical records show a diagnosis of chronic bronchitis and suspect pulmonary emphysema associated with a very mild obstructive ventilatory defect on VA examination in May 1981, within 14 months of separation from service. COPD secondary to tobacco abuse was assessed on March 1994 VA outpatient examination. April 1998 chest X-rays from private treatment sources revealed lines of fibrosis permanently affecting the right upper lobe, and the impression was COPD. June 1999 private pulmonary diagnostic studies noted a diagnosis of COPD and a two pack-per-day, 49-year-long cigarette smoking history. At a July 1999 examination by the Veteran's private physician, Dr. C.G., the Veteran presented a 10-year history of shortness of breath and a chronic cough that was described as a smoker's cough. He was noted at the time to be a one pack-per-day smoker, reduced from a high of three packs per day prior to an April 1998 myocardial infarction. Dr. C.G.'s impression was moderate COPD secondary to cigarette smoking. Private chest X-rays conducted in May 2000 revealed fibrotic and emphysematous changes in the Veteran's lungs. October 2002 private chest X- rays by G.H., M.D., revealed findings consistent with COPD, as well as interstitial fibrosis and scarring bilaterally. After an August 2003 examination by Dr. C.G., the impression was COPD with suggestion of an asthmatic component; when seen again in October 2003, the impression was mild to moderate COPD with an asthmatic component. After November 2003 VA outpatient examination, the impressions included asthma. After a January 2004 private examination, Dr. C.G.'s impression was moderate COPD with an asthmatic component, and the physician noted the Veteran's longstanding history of a chronic cough dating back to his military service, which she suspected represented a chronic bronchitic manifestation of COPD. In August 2005, Dr. C.G.'s impression was severe COPD. An October 2005 private CT scan of the Veteran's chest revealed extensive changes of bullous emphysema and mild bilateral bronchiectasis. In February 2006, Dr. C.G's impression was COPD which was predominantly emphysema. An August 2006 private CT scan revealed soft tissue node irregularity in the posterior aspect of the Veteran's right upper lobe with bronchiectasis in the left lower lobe. Severe COPD/emphysema was noted bilaterally. The report of a January 2007 VA examination, which was conducted by a nurse-practitioner, shows that the Veteran's pertinent clinical history was reviewed and he was diagnosed with COPD/emphysema and asthma, which the nurse-practitioner opined were not caused by or a result of the Veteran's military service, noting that COPD with an asthmatic component was not diagnosed until 2003, and that the most likely cause of the COPD/emphysema was the Veteran's long history of heavy cigarette smoking. In March 2007, Dr. D.N., the Veteran's private treatment physician, stated he reviewed the Veteran's medical records and noted a history of asthma dating back to early in his military career. Considering the natural history of emphysema, the doctor opined it was "more than likely" that the Veteran's respiratory disease "was progressing during his over 20 years in military service." In October 2007, a VA nurse-practioner noted there was no documentation of diagnosis of, or treatment for COPD/emphysema in the Veteran's service treatment records. She also noted that there was only a single episode of a self-reported history of asthma documented in these records, but unsupported by a formal diagnosis of asthma by a medical care provider during active duty. Treatment of bronchitis noted in service in January 1959 and January 1961 was only sporadic and episodic and most likely caused by his 2-3 pack per day cigarette smoking habit. This opinion was co-signed by an overseeing physician. The report of a July 2009 VA pulmonary examination shows that the Veteran's pertinent clinical history was reviewed and he was diagnosed with emphysema (categorized by the examiner as a obstructive respiratory disease) that was deemed secondary to tobacco abuse, which the examiner opined was not caused by or a result of the Veteran's military service. The examiner's rationale for her negative nexus opinion was that there was no clinical documentation in the Veteran's service treatment records that would substantiate a finding of service onset of chronic emphysema and asbestosis. The examiner further noted that the Veteran had a history of severe tobacco abuse, smoking at least one pack or more per day for approximately 50 years, which began prior to his entry into service. In October 2009, the Veteran submitted a private medical opinion in which the doctor attributed his current pulmonary problems to those experienced during service. Dr. C.N.B. identified several pulmonary diagnoses noted on a CT scan, to include fibrosis, bronchiectasis, COPD/emphysema, and nodules and soft tissue node in his right upper lung lobe. He indicated that these diagnoses "are all likely due to his numerous in-service lung infections as these changes take years to develop and his post service lung infections have been minimal compared to his service time infections likely significantly contributed to by his reactive airway disease (asthma)." Dr. C.N.B. opined that such changes would be difficult to see on routine chest x-ray, which explains why the Veteran's chest film on exit from service was negative. In May 2010, a VA physician opined that the Veteran's lung conditions, to include COPD with asthmatic component, pulmonary nodules, mild bronchiectasis and fibrosis were not related to military service, but rather to his "long standing smoking history." The VA physician found that the mention of asthma in the Veteran's clinical history on separation examination was a self-reported history and not represent a clinical diagnosis of an asthma condition in service, and to the extent that the Veteran alleged that a navy corpsman informed him that he had asthma, corpsmen were medics, but were not qualified to make valid clinical diagnoses. The examiner further found Dr. C.N.B.'s opinion that the Veteran's current pulmonary diagnoses were due to his history of upper respiratory infections to be unsupported by the evidence, as the upper respiratory infections in service were acute and not representative of onset of a chronic disease process. Upon review of the above, the medical evidence provided by both private practitioners and VA examiners strongly suggests that the Veteran's respiratory condition was caused by years of tobacco use. The Board recognizes that for a claim filed after June 9, 1998, as here, disabilities resulting from tobacco use are not subject to service connection and a finding that a respiratory disability was caused by smoking during service must be denied as a matter of law. 38 C.F.R. § 3.300 (2013). However, service connection is not precluded where the disability resulted from a disease that is otherwise shown to have been incurred in service. 38 C.F.R. § 3.300(b)(1). For purposes of this section, "otherwise shown" means that the disability can be service-connected on some basis other than the Veteran's use of tobacco products during service. Id. Here, although every medical opinion of record does not support such conclusion, there is evidence of record that the respiratory disability the Veteran currently suffers from today had its onset during his 25 years of active duty. The evidence reflects a long history of continuing symptoms beginning during service and continuing to the present time. Specifically, Dr. C.G. noted a history of chronic cough dating back to service which she suspected represented a chronic bronchitic manifestation of COPD; Dr. D.N. opined that it was more likely than not that the Veteran's disability had manifested during service and was progressing during that time; and Dr. C.N.B. attributed the Veteran's current pulmonary problems to those he experienced in service. The Board concludes that service connection can be granted in this case regardless of whether the disability was caused by smoking cigarettes because there is persuasive medical evidence in the record that emphysema and obstructive pulmonary disease had their onset in or began in service. This evidence includes the medical opinions of Drs. C.G., D.N., and C.N.B., noted above, as well as evidence of a diagnosis of chronic bronchitis and suspect pulmonary emphysema associated with a very mild obstructive ventilatory defect such a short time after separation from service in May 1981. Where a disease has its onset in service-that is, where it is incurred "coincident with service"--it may be service-connected regardless of its cause as long as it is incurred in line of duty and not due to the Veteran's willful misconduct. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) ("Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service . . . ."). The regulations prohibiting service connection for disability resulting from use of tobacco products specifically provide that that prohibition does not apply where "the disability became manifest . . . during service." 38 C.F.R. § 3.300(b)(1). Therefore, resolving any doubt in the Veteran's favor, the Board finds that the symptoms the Veteran experienced during his long military career in this case were as likely as not early signs of the obstructive disease which was diagnosed a mere 14 months after separation from service. Because it is at least as likely as not that the Veteran's current respiratory disability was incurred while in service, service connection for a respiratory disability is granted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). IV. Entitlement to service connection for ischemic heart disease The Veteran contends that his ischemic heart disease is related to exposure to herbicides while stationed on the U.S.S. St. Paul which anchored in Da Nang Harbor off the coast of the Republic of Vietnam (Vietnam) in September 1970. He indicates he accompanied a Flag Administrative Officer to Da Nang to pick up current orders for delivery to an incoming fleet. See February 2011 Statement. The Veteran's personnel records show an entry on March 10, 1971 that the Veteran was authorized to wear the Meritorious Unit Citation for services performed while stationed on the U.S.S. St. Paul between September 17, 1969 and September 28, 1970. The Veteran provided the U.S.S. St. Paul deck logs between September 17, 1970 and September 29, 1970 indicating that the ship anchored in Da Nang Harbor. He also submitted lay evidence that he received a gamma globulin immunization shot in preparation to go in-county on September 13, 1970 while on board the U.S.S. Chicago. Thereafter, he transferred to the U.S.S. St. Paul and "accompanied LCDR WN Rauch, the Flag Admin Officer to DaNang to pick-up current Op-orders/Plan, Rules of Engagement, etc. for delivery to incoming COMCRUDESGRUSEVENTHFLEET." Personnel records confirm service aboard the U.S.S. Chicago and U.S.S. St. Paul in keeping with the Veteran's statements. Certain diseases associated with exposure to certain herbicide agents used in support of military operations in Vietnam during the Vietnam era will be considered to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). 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). In August 2010, ischemic heart disease was added as one of the diseases associated with herbicide exposure for purposes of the presumption. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. 3.309(e). To warrant service connection, ischemic heart disease may manifest to a degree of at least 10 percent at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). 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, 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 C.F.R. § 3.307(a)(6)(iii) . "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.313(a); see also Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (upholding VA's interpretation of § 3.307(a)(6)(iii) as requiring the service member's presence at some point on the landmass or the inland waters of Vietnam). The VA has compiled a list of Navy and Coast Guard ships associated with service in Vietnam for the purpose of determining whether a particular US Navy or Coast Guard Veteran of the Vietnam era is eligible for the presumption of Agent Orange exposure based on the ships' operations. See http://vbaw.vba.va.gov/bl/21/rating/VENavyShip.htm ("VA List of Ships", updated January 8, 2014). The Introduction to this list indicates that inland waterways include the rivers, canals, estuaries, delta areas, and enclosed bays of Vietnam, but do not include open deep-water harbors such as those at Da Nang, Nha Trang, Cam Ranh, or Vung Tau. Those harbors are considered to be part of the offshore waters of Vietnam because of their deep-water anchorage capabilities and open access to the South China Sea. The ships on VA's List of Ships are divided into categories, to include "ships operating on Vietnam's close coastal waters for extended periods with evidence that crew members went ashore." The U.S.S. St. Paul is identified as one such vessel. The text of VA's List of Ships explains: This category includes large ocean-going ships of the Blue Water Navy that conducted a variety of missions along the close coastal waters of Vietnam for extended periods of time. Documentary evidence has been obtained for all ships in this category showing that some crewmembers actually went ashore . . . Because shore activity of some crewmembers has been documented, any Veteran aboard the ship at the time of documented shore activity will be eligible for the presumption of exposure if that Veteran provides a lay statement of personally going ashore. On the VA's List of Ships, it is recognized that while the U.S.S. St. Paul was anchored in Da Nang Harbor, small boats were sent ashore on May 9, 1969 and May 25, July 17 and September 17, 1970. The Board finds evidence that the Veteran was aboard the U.S.S. St. Paul at the time of documented onshore activity in September 1970. In addition, he provided a lay statement of personally going ashore; therefore, he is eligible for the presumption of in-service herbicide exposure based on his presence in Vietnam. Pursuant to VA regulations, service connection for ischemic heart disease is presumed. 38 C.F.R. §§ 3.307; 3.309(e) ORDER Service connection for a respiratory disability, to include emphysema and COPD, is granted. Service connection for ischemic heart disease, due to herbicide exposure, is granted. ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs