Citation Nr: 1504127 Decision Date: 01/28/15 Archive Date: 02/09/15 DOCKET NO. 08-12 253 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease with emphysema, to include secondary to herbicide exposure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD U. Ifon, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1964 to May 1968, to include service in the Republic of Vietnam. This appeal to the Board of Veterans' Appeals (Board) is from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In September 2011, October 2012, and May 2014, this matter came before the Board and was remanded for additional evidentiary development. The case has now been returned to the Board for appellate review. The issues of entitlement to a service connection for a gastrointestinal disorder, to include gastroesophageal reflux disease and Barrett's esophagus; and entitlement to increased ratings for peripheral neuropathy of the upper extremities have been raised by the record in a November 2014 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). FINDINGS OF FACT 1. Chronic obstructive pulmonary disease and cryptogenic organizing pneumonia are not subject to presumptive service connection as a result of Agent Orange exposure. The Veteran does not have a respiratory cancer. 2. The most probative medical and other evidence of record preponderates against finding that the Veteran's respiratory disorder is related to his active duty service. CONCLUSION OF LAW A respiratory disorder was not incurred or aggravated in service, and may not be presumed to have been so incurred due to herbicide exposure. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in July 2007 and May 2008 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the Veteran, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The issue was most recently adjudicated in a September 2014 supplemental statement of the case. VA has fulfilled its duty to assist. The RO has made reasonable and appropriate efforts to assist the Veteran in obtaining the evidence necessary to substantiate this claim, including requesting information from the Veteran regarding pertinent medical treatment he may have received and obtaining such records, as well as affording him a VA examination during the appeal period. The Veteran was afforded a pertinent VA examination in October 2011. The examiner provided sufficient detail for the Board to make a decision and the report is deemed adequate with respect to this claim. Pursuant to the Board's May 2014 remand directives, the VA made another attempt to secure outstanding VA and private treatment records. In an August 2014 report of contact, the Veteran stated he was unable to provide the address or phone number for his private treatment records. Additional efforts to locate such records yielded no results. Furthermore, in July 2014, VA notified the Veteran that his complete service treatment records could not be located. Where service records are unavailable, VA has a heightened duty to assist the appellant. Dixon v. Derwinski, 3 Vet. App. 261, 263-264 (1992). The Board is aware of the heightened duty to assist in such cases, and all appropriate action has been taken herein. VA was able to retrieve some of the Veteran's service treatment records in August 2007. Given the foregoing, the Board finds there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Hence, VA has fulfilled its duty to notify and assist the Veteran, and adjudication at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet, App. 384, 394 (1993). The appeal is now ready to be considered on the merits. Analysis The Veteran seeks entitlement to service connection for a respiratory disorder to include due to inservice Agent Orange exposure. In general, service connection may be granted for a disability or injury incurred in or aggravated by active duty service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for a disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Federal law provides that notwithstanding any other provision of the law, a veteran's disability shall not be considered to have resulted from personal injury suffered or disease contracted in the line of duty in active military, naval, or air service for the purposes of Title 38 on the basis that it resulted from injury or disease attributable to the use of tobacco products by the veteran during that member's service. 38 U.S.C.A. § 1103 Lung cancer may be presumed to have been incurred inservice if the disorder became compensably disabling within a year of separation from active duty. Further, given that the appellant serviced in the Republic of Vietnam service incurrence may be presumed for lung cancer if the disease becomes compensably disabling any time after his separation from active duty. 38 C.F.R. §§ 3.307, 3.309/ At an October 2011 VA examination, the Veteran's respiratory disorders revealed that the appellant suffered from chronic obstructive pulmonary disease and cryptogenic organizing pneumonia. There was no diagnosis of a respiratory cancer, and a review of the Veteran's medical records does not show a diagnosis of a respiratory cancer. As such, the Veteran's current respiratory disorders are not subject to presumptive service connection. Id. Although the Veteran is not entitled to service connection on a presumptive basis under these provisions, he may nevertheless show that his herbicide exposure actually caused his respiratory disorders. See 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). As previously noted, the Veteran has been diagnosed with chronic obstructive pulmonary disease and cryptogenic organizing pneumonia. Hence he has a current disability. Available service treatment records show that in March 1966, the Veteran was treated for cold symptoms which included an upper respiratory infection. In January 1967, he was diagnosed with sinusitis. Aside from a diagnosis of chronic subacute sinusitis, the Veteran's May 1968 separation examination report showed no diagnosis of a respiratory disorder. Private treatment records indicate the Veteran was diagnosed with pulmonary pneumonia following an automobile accident in October 1968. There were no reported residual problems with pneumonia. VA treatment records indicate the Veteran has a history of chronic obstructive pulmonary disease dating back to February 2005. In a July 2007 statement, the Veteran indicated his wife noticed his shallow breathing in 1967 but he reportedly ignored her and did not seek treatment until December 2001. At the October 2011 VA examination, the examiner concluded the Veteran's chronic obstructive pulmonary disease was most likely due to smoking despite not having an extensive smoking history. In this regard, the examiner noted the Veteran's reported history of smoking one pack of cigarettes per day for 17-18 years. As for cryptogenic organizing pneumonia, the examiner categorized it as an idiopathic disorder, meaning that the disorder was of unknown etiology. Overall, the examiner opined that neither chronic obstructive pulmonary disease nor cryptogenic organizing pneumonia were related to the Veteran's period of active service because he had no respiratory problems in service and developed symptoms 40 years post-separation. Furthermore, the examiner was unable to find medical literature supporting relationship between chronic obstructive pulmonary disease, cryptogenic organizing pneumonia and Agent Orange exposure. In August 2014, the Veteran submitted statements from two private physicians, both stating that the appellant has a history of common variable immunodeficiency due to chronic respiratory infections, sinus infections and an autoimmune condition. Both physicians concluded his diagnosis of chronic obstructive pulmonary disease and cryptogenic organizing pneumonia were actually symptoms of his underlying autoimmune disorder. The Board finds the October 2011 VA examination opinion to be highly probative because it relied on sufficient facts and data, provided a rationale, and contained sound reasoning. See Prejean v. West, 13 Vet. App. 444, 448 (2000). In considering the Veteran's own statements, while he is competent and credible to testify about his observable symptoms, as a layperson, he is not competent to provide an opinion as to a complex medical matter, such as the etiology of either chronic obstructive pulmonary disease or cryptogenic organizing pneumonia. See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Overall, the Board assigns a low probative value to the Veteran's contentions. Overall, the Board finds that the preponderance of the evidence is against finding entitlement to service connection for a respiratory disorder on either a direct or presumptive basis. There was no evidence of an in-service incurrence, and the only diagnosis of a respiratory infection was in correlation to cold symptoms and not an underlying respiratory disorder. Further, the evidence shows that the Veteran was not diagnosed with a respiratory disorder until several years post-separation from service. In addition, the October 2011 VA examiner concluded his respiratory disorders were due to his smoking history and an unknown etiology with no medical literature to support a causal link to Agent Orange exposure. No medical evidence has been offered to the contrary, and no medical evidence has been offered linking a respiratory disorder to service. The Board acknowledges the August 2014 statements from the Veteran's private physicians but they also do not support the contention that his respiratory disorders are related to service. Rather, they relate them to an autoimmune disorder which itself was not suggested to be related to service. For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for a respiratory disorder on any basis. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease with emphysema, to include secondary to herbicide exposure, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs