Citation Nr: 1436189 Decision Date: 08/13/14 Archive Date: 08/20/14 DOCKET NO. 12-22 397 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for idiopathic pulmonary fibrosis (IPF), including as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD E. Blowers, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from February 1966 to February 1968. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the RO in Muskogee, Oklahoma, which denied service connection for IPF. The Veteran testified from Muskogee, Oklahoma, at an April 2014 Board videoconference hearing before the undersigned Veterans Law Judge, who was seated in Washington, DC. The hearing transcript has been associated with the record. Regarding the April 2014 Board videoconference hearing, when conducting a hearing a Veterans Law Judge must suggest that a claimant submit evidence on any issue material to substantiating a claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010); 38 C.F.R. § 3.103 (2013). The Veterans Law Judge also must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record. Bryant, 23 Vet. App. at 497. Here, during the Board videoconference hearing, the Veterans Law Judge specifically noted the issue on appeal. Then, having heard the Veteran's evidence, the Veterans Law Judge sought to identify any pertinent evidence not currently associated with the record that might have been overlooked or was outstanding that might substantiate the claim. Specifically, the Veterans Law Judge asked for evidence that might be used to substantiate the Veteran's service connection claim. The Veteran was informed that a nexus opinion noting that the examiner addressed the Veteran's post-service exposure to environmental hazards, including smoking and oil field work, would be helpful in substantiating the claim. The Veterans Law Judge queried the Veteran specifically regarding the need for a more thorough nexus medical opinion to support his claim; therefore, the Veterans Law Judge substantially complied with the requirements of 38 C.F.R. § 3.103; Bryant at 496-97. Additional evidence was received by the Board from the Veteran after the Board hearing, for which a waiver of initial RO consideration was provided. 38 C.F.R. § 20.1304 (2013). Subsequently, the Board received additional evidence from the Veteran in May 2014 for which a waiver of initial RO consideration was not provided; however, as the Board is granting the claim for service connection for IPF, which constitutes a full grant of the benefits sought on appeal, the Veteran is not prejudiced by the Board considering this evidence in the first instance. The Board has reviewed the physical claims file and both the Veterans Benefits Management System (VBMS) and the "Virtual VA" files so as to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam while on active duty and was exposed to Agent Orange. 2. The Veteran is currently diagnosed with IPF. 3. IPF is not a disability for which presumptive service connection based on exposure to herbicides can be granted. 4. The currently diagnosed IPF is related to service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for IPF, including as due to herbicide exposure, have been met. 38 U.S.C.A. §§ 1110, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.313, 3.326(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.326(a). In this decision, the Board grants service connection for IPF. As such action represents a complete allowance of the Veteran's claim, no further discussion of VA's duties to notify and to assist is necessary. Service Connection for IPF Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. §§ 3.307, 3.309. The following diseases are deemed associated with herbicide exposure under VA law: AL amyloidosis, Chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Multiple myeloma, Non-Hodgkin's lymphoma, Parkinson's disease, Acute and subacute peripheral neuropathy, Porphyria cutanea tarda, Prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). As such, IPF is not entitled to presumptive service connection due to exposure to Agent Orange in the Republic of Vietnam; however, notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Further, as the instant decision grants service connection for IPF on a direct basis, there is no need to discuss whether service connection is warranted under the presumptive provisions for chronic diseases pursuant to 38 C.F.R. § 3.303(b). 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). At the April 2014 Board hearing, and in various lay statements, the Veteran advanced that he is entitled to service connection for IPF due to his exposure to Agent Orange while serving in the Republic of Vietnam. Private treatment records, including a November 2011 interstitial lung disease clinic summary report, have diagnosed the Veteran with IPF. Further, as the Veteran's service records reflect that he served in the Republic of Vietnam while on active duty, he is presumed to have been exposed to the herbicide Agent Orange; therefore, the Board finds the existence of a disease or injury in service. After a review of all the evidence of record, lay and medical, the Board finds the evidence is at least in equipoise as to whether the Veteran's IPF is related to active service. The evidence weighing against a finding that the Veteran's IPF is related to active service is the absence of any complaints, treatment, or diagnosis of IPF or IPF related symptoms in the Veteran's service treatment records. Further, private treatment records reflect that the Veteran was not diagnosed with IPF until 2011, and that the Veteran's post-service environmental exposure history includes years of employment as an oil field worker, and a 20-year habit of smoking two packs of cigarettes every day. The evidence supporting the Veteran includes January 2012 and May 2014 letters from the Veteran's private physician, Dr. Britt, who provided an opinion that the Veteran's exposure to Agent Orange "could" have caused his IPF. While the letters do not mention the Veteran's post-service environmental exposure, a May 2011 treatment record conveys that Dr. Britt was aware that the Veteran had retired from a career working in the oil fields, and that the Veteran previously had a two-pack-a-day smoking habit for over 20 years. The record also states that Dr. Britt discussed the possibility of asbestos exposure with the Veteran. The Board acknowledges that these opinions do not necessarily indicate that it is as likely as not that the Veteran's IPF is related to his Agent Orange exposure; however, a January 2014 treatment record signed off on by Dr. Britt notes that the Veteran's IPF "is likely related to his Agent Orange exposure." As such, the Board will resolve reasonable doubt in favor of the Veteran to find that Dr. Britt has opined that there is some likelihood that the Veteran's IPF is related to his exposure to Agent Orange in service. Further, at the April 2014 Board hearing, the Veteran credibly testified that when he first began showing symptoms of IPF in 2011, he was sent to a pulmonary specialist who conducted a series of tests and examinations which led to the IPF diagnosis. The Veteran advanced that the specialist opined that the most likely cause of the IPF was the Veteran's exposure to Agent Orange. The Veteran is competent to report such a contemporary diagnosis and opinion. Davidson, 581 F.3d 1313. The Veteran served in the Republic of Vietnam while on active duty and was exposed to Agent Orange. He has a current diagnosis of IPF. Medical records reflect that Dr. Britt, who had an accurate history of the Veteran's post-service environmental exposures, opined that the Veteran's IPF was likely caused by his exposure to Agent Orange. Additionally, the Veteran testified that a pulmonary specialist opined that the Agent Orange exposure was the most likely cause of the Veteran's IPF. The Veteran's testimony was competent, credible and probative. Resolving reasonable doubt in the Veteran's favor, the Board finds that IPF was incurred in active service. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for IPF, including as due to herbicide exposure, is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs