Citation Nr: 1510683 Decision Date: 03/13/15 Archive Date: 03/24/15 DOCKET NO. 12-27 333A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a lung disorder (originally claimed as breathing condition), to include as due to herbicide (Agent Orange) exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Murray, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1966 to June 1968. This matter comes on appeal to the Board of Veterans' Appeals (Board) from a November 2011 rating decision by the Department of Veterans Affairs, Regional Office located in Detroit, Michigan (RO), which denied the benefit sought on appeal. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran served in Vietnam during the Vietnam Era, and his exposure to herbicide agents, to include Agent Orange, is presumed. 2. The competent lay and medical evidence of record does not show that the Veteran's current diagnosed lung disorders, including emphysema and chronic obstructive pulmonary disorder (COPD), manifested until decades after his period of service. 3. The preponderance of the competent evidence is against a finding that his diagnosed current diagnosed lung disorders, including emphysema and chronic obstructive pulmonary disorder (COPD), is causally related to his period of active service, to include as due to herbicide exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for lung disorder have not been met. 38 U.S.C.A. §§ 1110, 1116, 1131, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, 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 record reflects that the Veteran was provided all required notice by correspondence dated in August 2010 prior to the adjudication of his claim in November 2011. Regarding VA's duty to assist, all appropriate development to obtain the Veteran's pertinent medical records, including service treatment records and VA and private treatment records, has been completed. The Veteran has not identified any pertinent, outstanding records that could be obtained to substantiate his claim, including any records of post-service treatment. The Board is also unaware of any such records. As such, VA has fulfilled its duty to assist the Veteran in obtaining necessary evidence. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2007); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). Moreover, the Veteran has been afforded a VA examination in June 2011 in conjunction with his claim. The report demonstrates that the VA examiner recorded the Veteran's reported medical history and the findings from clinical evaluation. Based on a review the evidence of record, and the appropriate medical literature, the VA examiner rendered an appropriate opinion on the nature and etiology of the Veteran's claimed lung disorder and is supported by the evidence of record. The Board notes that while the VA examiner initially noted that the Veteran's post-service occupational history involved 10 years in an Aluminum factory and 30 years in an office furniture factory, in the rational statement, the VA examiner incorrectly stated that the Veteran work history involved 30 years in a an Aluminum factory and 10 years in an office furniture factory. Despite the clerical error, the Board finds that the VA examiner's rationale statement is sufficient to support his medical conclusion that there is no causal link between the Veteran's diagnosed lung disorders and his period of service, to include his presumed Agent Orange exposure. In this regard, it is clear from the rational statement, that the VA examiner's medical conclusion is based on a review of the entire record, the findings from clinical evaluation, the Veteran's reported history of smoking, and the medical literature in conjunction with his post-service occupational history which involved 40 years working in a factory setting. Therefore, the Board finds that the evidence of record is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 [affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim]. Accordingly, the Board concludes that VA has complied with its duty to assist the Veteran. In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of the Veteran's claims has been consistent with said provisions. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the issues on appeal were insignificant and nonprejudicial to the Veteran. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claims. See 38 C.F.R. § 3.103. He has retained the services of a representative, and he has declined an opportunity to testify at a personal hearing before a Veterans Law Judge. 2. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 U.S.C.A. § 3 .303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange). 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). When such a veteran contracts a disease e associated with exposure to herbicides (listed in 38 C.F.R. § 3.309(e)) that becomes manifest to a compensable degree within the time period specified in 38 C.F.R. § 3.307(a)(6)(ii), the disease will be considered to have been incurred in service, even though there is no evidence of such a disease during the period of service. VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 -46 (1994); see also 61 Fed. Reg. 57,586 -57,589 (1996); 72 Fed. Reg. 32,345 -32,407 (Jun. 12, 2007). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. The Veteran seeks entitlement to service connection for a lung disorder, claimed as a breathing condition. He contends that his breathing problems are related to his period of service when he was exposed to Agent Orange and other environmental hazards, to include burning foliage and human waste. The Veteran has also reported that he first began smoking during his period of service. Notably, the Veteran cannot base a claim of service connection for a disability attributed to the use of tobacco while in service. 38 U.S.C.A. § 1103. Congress has prohibited the grant of service connection for disability on the basis that such disability resulted from disease attributable to the use of tobacco products during the veteran's active service for claims filed after June 9, 1998. 38 U.S.C.A. § 1103. Therefore, as a matter of law, any claims received by VA after June 9, 1998 are subject to this restriction. In the present case, the medical evidence of record reflects that the Veteran has been diagnosed with emphysema and COPD. See VA treatment records as well as the report of a June 2011 VA examination. Element (1), current disability, is demonstrated. Concerning element (2), in-service disease or injury, the Board notes that a review of the Veteran's service treatment records does not show any treatment or diagnosis for chronic lung or respiratory-related problems. On his March 1968 medical history report prior to separation, the Veteran indicated that he had history of shortness of breath and chest pains during his period of service; however, the Veteran received normal lung and chest evaluations on clinical examination. His chest x-ray was normal at that time. An April 1968 service treatment record shows that the Veteran presented with complaints of chest pain but he denied any history of coughing. A chest x-ray was normal and no chronic lung disorder was noted. Post-service VA medical records include a January 1969 VA general medical examination report which shows a normal respiratory evaluation. VA treatment records starting in 2009 that show treatment for emphysema and he was later diagnosed with COPD. (The Board notes that emphysema is a type of COPD). There is no medical evidence showing that the Veteran's current diagnosed lung disorder, to include emphysema or COPD, existed during his period service or until decades after his separation from service. See 38 C.F.R. §§3.303, 3.307, 3.309. The record does support that the Veteran was exposed to Agent Orange and other environmental hazards during his period of service. The Veteran's service records shows that he was stationed in the Republic of Vietnam for one year, from November 1965 to November 1966. Thus, his exposure to herbicide agents is presumed. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). However, the Veteran's diagnosed lung disorders, to include emphysema and COPD, are not recognized as a presumptive disorder due to herbicide exposure as per 38 C.F.R. §§ 3.307 and 3.309. As such, service connection for the Veteran's lung disorder is not justified on a presumptive basis. Regardless, the Veteran's exposure to herbicides, including Agent Orange, is presumed, and the Board concedes that the Veteran was likely exposed to other environment hazards, such as burning foliage and human waste. The element (2) is demonstrated to that extent. With respect to the crucial element (3), nexus or relationship, between the Veteran's diagnosed lung disorder and his exposure to Agent Orange and other environmental hazards, the record lacks any medical evidence establishing such a possible relationship. In this regard, the record contains the June 2011 VA examiner's medical conclusion that it is less likely than not that the Veteran's diagnosed lung disorder, to include emphysema and COPD, was related to his period of service. In support of this medical conclusion, the 2011 VA examiner noted that based on a review of the claims folder and the medical literature, it was more likely that the Veteran's emphysema was caused by his history of smoking. The VA examiner noted the Veteran's post-service factory work. The VA examiner also noted stated that numerous epidemiologic studies indicated that cigarette smoking is "overwhelmingly" the most import risk factor for COPD. The VA examiner considered the Veteran's complaint of shortness of breath in March 1968, but the VA examiner felt that it would be completely speculative to stay that his shortness of breath at that time was due to his current emphysema. The VA examiner cited to additional medical literature that supported that predominant risk factors for COPD included smoking and increased airway responsiveness, and other risk factors included environmental hazards other than smoking, atopy, and antioxidant deficiency. The VA examiner concluded that it was less likely than not that the Veteran's current diagnosed lung disorder was related to his period of service. The Board finds it highly pertinent that there is no contrary medical opinion of record. Indeed, the Veteran has not provided any objective evidence demonstrating a relationship between his current lung disorder and his military service. The Veteran has had ample opportunity to secure medical evidence in his favor and submit the same to VA. He has not done so. See 38 U.S.C.A. § 5107(a) [it is a claimant's responsibility to support a claim for VA benefits]. The Board notes that certain chronic diseases, although not shown in service, may be presumed to have incurred in or aggravated by service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, the Federal Circuit recently held that continuity of symptomatology under 38 C.F.R. § 3.303(b) only applies to those conditions recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's diagnosed lung disorders, emphysema and COPD, are not listed as chronic conditions. Therefore, service connection based on continuity of symptomatology for chronic condition is not warranted. In addition, the evidentiary gap between the Veteran's active service and the earliest medical evidence of emphysema weighs heavily against the Veteran's claims on a direct basis. A lengthy period without treatment is evidence against a finding of continuity of symptomatology, and it weighs heavily against the claims. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). The Board has considered the Veteran's own statements which suggest that his lung disorder is associated with exposure to Agent Orange and other environmental hazards. While the Veteran is competent to describe his symptoms, as a layperson he is not competent to determine the cause of his lung disorder. See Bostain v. West, 11 Vet. App. 124, 127 (1998). The Board acknowledges the Court's holding in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. While he is competent to discuss the symptoms and how they occur intermittently over the years, he lacks the medical expertise to diagnose the condition and to relate its etiological origin in service. Moreover, the 2011 VA examiner's opinion provides medical evidence against a link between the current diagnosed disorder and his period of service, to include exposure to Agent Orange and environmental hazards. In sum, the Veteran does not have a current diagnosed that is recognized under 38 C.F.R. § 3.309(e) as a disease for which presumptive service connection is available on the basis of herbicide exposure. Further, the weight of the evidence is against a finding that the Veteran's current diagnosed lung disorder, including emphysema and COPD, is related to his service, including in-service exposure to herbicide agents. As such, the preponderance of the medical evidence is against an award of service. Consequently, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The claims must be denied. ORDER Entitlement to service connection for lung disorder, to include emphysema and COPD, is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs