Citation Nr: 1601848 Decision Date: 01/15/16 Archive Date: 01/21/16 DOCKET NO. 14-19 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease, to include as due to exposure to Agent Orange. 2. Entitlement to service connection for a low back disorder. 3. Entitlement to service connection for hypertension, to include as due to exposure to Agent Orange. REPRESENTATION Veteran represented by: Collin A. Douglas, Accredited Agent ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The issues of entitlement to service connection for chronic obstructive pulmonary disease, to include as due to exposure to Agent Orange and entitlement to service connection for hypertension, to include as due to exposure to Agent Orange are addressed in the Remand portion of this decision. FINDINGS OF FACT A low back disorder did not begin in and is not otherwise related to the Veteran's active duty service. CONCLUSION OF LAW The criteria for service connection for a low back disorder are not met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015). The RO's February 2012 letter advised the Veteran of the 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). This letter also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. Accordingly, with this letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records, as well as identified private and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran was also provided with a November 2014 VA examination in conjunction with the claim on appeal and a February 2015 medical opinion was rendered. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). This February 2015 medical opinion was adequate as it was based upon a complete review of the evidence of record, consideration of the Veteran's lay statements, and review of the most recent November 2014 clinical examination of the Veteran. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran declined to testify before the Board. 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 Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. 473, 486 (2006). The Veteran contends he injured his back during service. Specifically, in a December 2012 statement, he reported that he injured his low back when he fell while traversing a stream in the mountains and was carried downstream about ten feet over rocks. He indicated he had a sore back for days and was treated in the field by medics who gave him pills and put him on bed rest. He stated his back has bothered him on and off for "many years." Service connection may be established for disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, in order to prevail on the issue of service connection the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) The Veteran's DD-214 reflects he was awarded, among numerous other medals and badges, a Combat Infantry Ribbon and confirms he served in the Republic of Vietnam from August 1970 to May 1971. As combat service is confirmed by official service department records, and the Veteran's statements are consistent with the circumstances, conditions, or hardships of his service in Vietnam, he is entitled to the relaxed evidentiary standards afforded to combat veterans. See 38 U.S.C.A. § 1154(b). Accordingly, his lay statements alone are sufficient to establish that he injured his back in service even if service treatment records do not document any back injuries or treatment. This relaxed standard, however, does not establish service connection for his claimed disability; it merely aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. See Wade v. West, 11 Vet. App. 302, 305 (1998). A veteran must still generally establish the claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996). The Veteran's service treatment records are silent for any complaints of, treatment for, or diagnoses of any back pain or back disorders and his March 1969 entrance examination and April 1972 separation examination did not document any spine or musculoskeletal abnormalities. In September 2005, the Veteran presented to VA for a new patient evaluation. He reported experiencing low back pain and numbness at the top of his hips and legs when he bent over, which was relieved by standing up. He stated he had been "battling low back pain and numbness in his lower legs for the past two years." Examination of the back revealed no deformities and no costovertebral angle tenderness, and the examiner assessed that chronic back pain was probably due to osteoarthritis. At a March 2007 VA appointment, the Veteran reported that he was "starting to have lower back pain these days," which he attributed to his long history of "hard physical work." The examiner prescribed nonsteroidal anti-inflammatory drugs. March 2008 VA treatment notes reflect the Veteran complained of a long history of low back pain. He denied any known trauma and acknowledged a history of heaving lifting. The Veteran stated that Naproxen was not effective in alleviating his back pain and the examiner prescribed Motrin. March 2008 x-rays revealed minimal degenerative osteophytes at L1 through L4. At a May 2011 examination in conjunction with his claim for Social Security Administration (SSA) disability benefits, the Veteran reported that he began developing sharp pains in his lower back radiating to his bilateral legs and hips in 2001. He also reported that in 2006 he lifted a heavy bag of cement weighing 60 pounds, causing a sharp pain in his lower back. At an August 2012 VA appointment, the Veteran requested stronger medication for his chronic back pain, which he indicated he has "had for years but seems[ed] to be getting worse." The examiner prescribed new medication and advised the Veteran to follow up as needed. At a November 2014 VA examination, the examiner diagnosed a lumbosacral strain and degenerative arthritis of the spine. The Veteran reported he strained his low back in service, and denied any surgeries relating to his low back. An April 2013 x-ray of the lumbar spine revealed normal alignment and no acute fracture or destructive lesion. There was moderate hypertrophic spurring, degeneration of the discs, and old reverse wedge configuration of the L5 vertebra. The report indicated that imaging results were not significantly different from 2008. The examiner found the Veteran's back disorder was "at least as likely as not incurred in or caused by events that occurred in service" because "there was documented evidence of the Veteran's condition in [his service treatment records]." However, as discussed previously, there is no evidence of any complaints, treatment for, or diagnosis of a back disorder during service. As this opinion is based on an inaccurate factual premise, the Board affords it no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an incomplete or inaccurate factual premise). Recognizing this discrepancy, the RO requested a supplemental VA medical opinion. In a February 2015 medical opinion, the physician reported reviewing the Veteran's claims file, to include the November 2014 examination report. The physician noted that the Veteran did not have any diagnosed back disorder at separation from service and that any in-service back injury was most likely musculoskeletal in nature and would have been expected to resolve without residual. The physician opined that the Veteran's current back disorder was "less likely than not" related to the described in-service fall which occurred over 40 years ago. In a February 2013 statement, the Veteran indicated he could not afford health insurance when he left Vietnam and "just suffered with [his] neck, back, and hypertension." He stated he went to a doctor a few times but moved out of town and didn't know where the doctor moved to and did not know his or her name. With regard to the Veteran's lay assertions, the Veteran's statements are competent evidence to describe the symptoms that he experienced during and since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, there is no indication that the Veteran possesses the requisite medical knowledge, experience, or education to render a probative opinion involving medical causation. See Layno v. Brown, 6 Vet. App. 465 (1994). Consequently, his statements regarding the etiology of his low back disorder are insufficient to establish a nexus to service. The Board finds no basis for concluding that the Veteran, who lacks specialized medical education, training, or experience, would be capable of establishing whether active duty military service caused degenerative arthritis of the low back. See 38 C.F.R. § 3.159(a); see also Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (lay assertions of medical causation do not constitute competent medical evidence). While there is no competent and probative evidence demonstrating that Veteran's low back disorder was caused by his active duty service, the record does contain a February 2015 VA medical opinion which explicitly found that the Veteran's low back disorder was not due to his active duty service. The Board affords significant probative weight to this opinion, which was based on a full review of the Veteran's claims file, to include his lay statements regarding his claimed injury, and a review of the November 2014 medical examination report. See also Prejean v. West, 13 Vet. App. 444, 448-49 (2000). This medical opinion also provided adequate reasoning in support of the finding that the Veteran's low back disorder was not due to his back injury service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). For the foregoing reasons, the Board finds that the Veteran's claim for service connection for a low back disorder must be denied. The only evidence in support of the Veteran's claim is his own contentions and, as noted, the Veteran's statements are not competent evidence to provide an opinion regarding medical causation. On the other hand, the evidence of record does contain an adequate medical opinion finding that the Veteran's current back disorder is not related to his active duty service. The Veteran has not provided and there is no adequate medical evidence of record which contradicts the February 2015 opinion. As the weight of the evidence is against the Veteran's claim, the benefit of the doubt doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Service connection for a low back disorder is denied. (CONTINUED ON NEXT PAGE) REMAND The Veteran claims his diagnosed hypertension and chronic obstructive pulmonary disease (COPD) are due to his active duty service, to include as due to exposure to Agent Orange. The Veteran's DD-214 confirms he served in the Republic of Vietnam from August 1970 to May 1971, and therefore, he is presumed to have been exposed to herbicides, such as Agent Orange. See 38 U.S.C.A. § 1116(f) (West 2014); 38 C.F.R. § 3.307(a)(6) (2015). Although there are certain diseases that are presumed incurred by veterans as a result of exposure to herbicide agents, COPD and hypertension are not included on the list of presumptive diseases enumerated by the Secretary pursuant to the applicable statute. See 38 C.F.R. § 3.309(e) (2015). Notwithstanding the presumption provisions, a veteran is not precluded from establishing service connection for disability due to herbicide agent exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (observing that the "availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange"). While COPD is not listed on the list of presumptive diseases associated with exposure to herbicide agents, respiratory cancers are on that list. See 38 C.F.R. § 3.309(e). Although the Veteran does not have any diagnosed respiratory cancers, he does have a diagnosis of COPD, and a January 2012 VA medical report reflects a spot was found on his lung, yet it is unclear whether it was determined to be cancerous. Accordingly, the Board finds that a VA pulmonary examination is required to determined if he has any diagnosed respiratory cancers and to resolve the question of whether the Veteran's diagnosed COPD is due to his active duty service, to include as due to exposure to herbicides. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (holding, in pertinent part, that an examination or opinion is warranted when there is an indication that a current disability may be related to an in-service event). In an April 2014 report, the National Academy of Sciences (NAS) found that there was "limited or suggestive evidence of an association between" hypertension and Agent Orange exposure based on a recent statistical study. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20308 (April 11, 2014). The category "limited or suggestive evidence of an association" means that the "evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence." Id. NAS's findings as to hypertension are sufficient to satisfy the "low threshold" of whether a current disability may be related to require VA to provide a veteran with an examination and opinion. See McLendon, 20 Vet. App. at 83. Consequently, these claims must be remanded for VA examinations and opinions addressing whether the Veteran's hypertension and COPD are related to Agent Orange exposure. The clinician may not rely solely on the fact that the Veteran's hypertension and COPD are not on the presumptive list of diseases associated with herbicide exposure. See Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009) (holding that "to permit the denial of service connection for a disease on the basis that it is not likely there is any nexus to service solely because the statistical analysis does not support presumptive service connection, would, in effect, permit the denial of direct service connection simply because there is no presumptive service connection"). Rather, the clinician must provide specific reasons in support of the opinion, to include, as relevant, why any statistical or medical studies are found to be persuasive or unpersuasive, whether there are other risk factors that might be the cause of the Veteran's hypertension, and whether it has manifested itself in an unusual manner. Id. The clinician must provide a complete explanation in support of any opinion rendered. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. All attempts to secure this evidence must be documented in the claims file by the RO. Regardless of the Veteran's response, the RO must obtain and associate with the evidence of record all outstanding VA treatment records. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Following the completion of the above development, the Veteran must be afforded the appropriate VA examination to determine whether any diagnosed respiratory disorder, to include COPD, is related to his military service, to include as due to exposure to herbicide agents, such as Agent Orange. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The evidence of record in the form of electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must be informed that the Veteran served in the Republic of Vietnam from August 1970 to May 1971, and is presumed to have been exposed to herbicide agents, to include Agent Orange. In providing the below requested opinion, the examiner is reminded that VA laws and regulations do not preclude service connection for a disorder due to herbicide exposure that is not on the list of diseases presumptively associated with exposure to herbicide agents. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any currently or previously diagnosed respiratory disorder, to include COPD, is related to his active duty service, to include as due to exposure to herbicide agents, such as Agent Orange. The examiner must state upon what specific evidence this determination is based. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. The Veteran must also be afforded the appropriate VA examination to determine whether any currently or previously diagnosed hypertension is related to his military service, to include as due to exposure to herbicide agents, such as Agent Orange. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The evidence of record in the form of electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must be informed that the Veteran served in the Republic of Vietnam from August 1970 to May 1971, and is presumed to have been exposed to herbicide agents, to include Agent Orange. In providing the below requested opinion, the examiner is reminded that VA laws and regulations do not preclude service connection for a disorder due to herbicide exposure that is not on the list of diseases presumptively associated with exposure to herbicide agents. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any currently or previously diagnosed hypertension is related to his active duty service, to include as due to exposure to herbicide agents, such as Agent Orange. The examiner must state upon what specific evidence this determination is based. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. The RO must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. The examination reports must be reviewed by the RO to ensure that they are in complete compliance with the directives of this remand. If deficient in any manner, the RO must implement corrective procedures at once. 6. After completing the above actions, and any additional development deemed necessary, the RO must readjudicate the Veteran's claim. If any benefit on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case and be given an adequate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs