Citation Nr: 1753429 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 12-11 648 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection, to include on a secondary basis, for lung cancer, to include as due to environmental exposures and exposure to herbicides. 2. Entitlement to service connection, to include on a secondary basis, for diabetes, to include as due to environmental exposures and exposure to herbicides. 3. Entitlement to service connection, to include on a secondary basis, for chronic obstructive pulmonary disease (COPD), to include as due to environmental exposures and exposure to herbicides. 4. Entitlement to service connection, to include on a secondary basis, for hypertension, to include as due to environmental exposures and exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1965 to December 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from June 2011 and August 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In his September 2014 substantive appeal, the Veteran asserted that his lung cancer was originally misdiagnosed and treated as rheumatism. The Veteran further asserted that his lung cancer would have been treated earlier but for the misdiagnosis and asserted a claim pursuant to 38 U.S.C. § 1151. The Board notes that a claim under38 U.S.C. § 1151 has not been adjudicated by the AOJ; thus, the Board does not currently have jurisdiction over that issue. Additionally, the Board previously referred the issue of entitlement to a total disability rating due to individual unemployability (TDIU) to the RO, however, a review of the claims file shows that the RO had not addressed this claim. Accordingly, both claims are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). During the pendency of the appeal, an August 2017 rating decision granted service connection for an acquired psychological disorder, to include unspecified trauma and stressor related disorder and unspecified depressive disorder, claimed as posttraumatic stress disorder. Therefore, as the RO granted the benefit sought on appeal, that issue is no longer before the Board. Shoen v. Brown, 6 Vet. App. 456 (1994). The issues of entitlement to service connection for diabetes and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran was not exposed to herbicides in service. 2. The Veteran's lung cancer did not originate in service or within a year of service, and is not otherwise etiologically related to the Veteran's active service. 3. The Veteran's COPD did not originate in service or within a year of service, and is not otherwise etiologically related to the Veteran's active service. CONCLUSIONS OF LAW 1. The criteria for service connection for lung cancer are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for service connection for COPD are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notices in April 2011 and December 2012. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claims, including with respect to VA examinations of the Veteran. Neither the Veteran nor his representative has identified any deficiency in VA's notice or assistance duties. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). In order to establish entitlement to service connection, there must be (1) 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) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. 3.307, 3.309(a) (2017). Lay evidence presented by a Veteran concerning continuity of symptoms after service may not be deemed to lack credibility solely because of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Herbicide Exposure The Board notes that prior to the August 2016 Board hearing, the Veteran claimed exposure to herbicides while serving aboard the USS Bennington. Specifically, the Veteran asserted that he served aboard the USS Bennington which transported equipment and the remains of US servicemen from Vietnam which were exposed to herbicide agents. Thus, the Veteran further asserted that he was exposed to herbicides by way of transport. The Board additionally notes that during the August 2016 Board hearing, the Veteran's representative stated the Veteran was no longer asserting service connection for lung cancer and COPD as due to herbicide exposure. However, the representative conversely asserted service connection for diabetes and hypertension as due to herbicide exposure. In any event, VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e) (2017). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all Veterans who served in the Republic of Vietnam during the Vietnam Era. See 38 U.S.C. § 1116 (f) (2012) and 38 C.F.R. § 3.307 (a)(6)(iii) (2017). Service in the Republic of Vietnam includes service in the waters off shore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(iii). There is no presumption for exposure to herbicides for a veteran who served aboard ship off the shores of the Republic of Vietnam. In Haas v. Peake, 525 F.3d 1168, 1187-1190 (Fed. Cir. 2008), the Federal Circuit confirmed VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) as requiring a service member's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption. Thus, a veteran must actually set foot within the land borders of Vietnam, to include the contiguous waterways, in order to be entitled to the statutory presumptions for disabilities claimed as a result of exposure to herbicides. See Haas, supra; see also VAOPGCPREC 27-97. Notwithstanding the presumption, service connection for a disability claimed as due to exposure to herbicides may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113(b) (2012) and 1116 and 38 C.F.R. § 3.303 (2017). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, the Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a) (2012). The Board notes that the Veteran's period of active duty service was from October 1965 to December 1967. A February 2013 request for information shows the Veteran served aboard the USS Bennington which was in the official waters of the Republic of Vietnam for several days between December 1966 and April 1967. No record was found that provided conclusive proof the Veteran had in-country service. In a March 2013 decision, the RO found no proof the Veteran had in-country Vietnam service during the Vietnam War Era. Therefore, exposure to Agent Orange was not conceded. This decision was based on a PIES request which did not support the following: that the Veteran was exposed to herbicides; no conclusive proof on in-country service in Vietnam; and that the Veteran did not receive treatment at any facility in Vietnam. In a June 2013 decision, the RO found no documentation that supported the assertion the Veteran was stationed on a ship that operated in the inland waterways, docked to shore or pier, or operated in coastal waters for an extended period. The RO further found no conclusive evidence the Veteran was "boots on the ground" in Vietnam. Accordingly, exposure to Agent Orange was not conceded. The Board further notes that during the August 2016 Board hearing, the Veteran testified that while in the Navy his ship visited different ports, but that he never went ashore in Vietnam or in Thailand. As the evidence does not show the Veteran served in Vietnam at any time between October 1965 and December 1967, the presumptive provision does not apply. Additionally, the Veteran has not asserted exposure to herbicides during service other than being exposed to equipment and the remains of servicemen from Vietnam, and evidence of record does not show exposure to herbicides at any time during service. The Board points out that there is no presumption of exposure to herbicides through equipment or human remains that were located in an area where the presumption of exposure to such herbicides attaches. Instead, the evidence must show that the Veteran was actually exposed to herbicide residue. Thus, service connection on a presumptive basis as due to in-service exposure to herbicides/Agent Orange in Vietnam is not warranted. 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Accordingly, the Board finds that the evidence of record does not support a finding of exposure to herbicides during service and will not further consider the Veteran's service connection claims on a secondary basis due to herbicide exposure. Lung Cancer and COPD The Board notes that the facts surrounding the Veteran's service connection claims for lung cancer and COPD are similar and those claims will be addressed concurrently. In the present case, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for lung cancer and COPD. The Veteran's STRs include an August 1965 enlistment examination and a December 1967 administrative discharge examination, both of which noted normal lungs and negative chest X-ray studies. Additionally, an April 1966 chest X-ray study was negative. A September 1990 radiological study revealed minimal pulmonary fibrosis in both lung fields. No recent pulmonar0r infiltrate was found. A November 1991 VA medical record shows the Veteran complained of chest pain. The medical record noted a diagnosis for emphysema. The Veteran was assessed with a possible pulmonary embolism which was later ruled out. Another medical record shows a diagnosis for a lung contusion due to a history of wrestling with his nephew in which he took a blow to the right side of his chest. In addition, the Veteran was diagnosed with pneumothorax. A November 1991 radiological study revealed minimal infiltrate at the right base and a follow-up chest X-ray was recommended. A radiological study conducted in March 1992 noted a normal chest including lungs that were clear without infiltrates. An October 1992 radiological study revealed a 1 cm density in the left upper lobe which was noted as a possible old scar. The radiologist noted no change in the mass since the previous 1991 radiological examination. A May 1996 radiological study revealed a mass of the left upper lobe measuring 6 x 8 cm. A biopsy was suggested. A September 1996 radiological study also revealed a left upper lobe mass as seen on plain radiograph and confirmed with a CT scan of the chest. A biopsy revealed infiltrating poorly differentiated adenocarcinoma with squamous differentiation, emphysema and chronic bronchitis. A September 1996 VA medical record noted a lung nodule discovered on routine reoperative examination prior to herniorrhaphy. The physician found no other associated symptoms other than a mild dry cough. The Veteran reported smoking one pack per day and heavy alcohol use until three years prior. He also reported working as a painter for twenty-five years. The Veteran was diagnosed with a moderately differentiated adenosquamous carcinoma in the upper lobe of the left lung and underwent a left upper lobectomy. An October 1996 discharge report diagnosed the Veteran with left upper lobe lung lesion and hypertension status post left thoracotomy and left upper lobectomy. A December 1996 VA general examination noted the Veteran's lungs to be clear to auscultation bilaterally. A December 1998 VA medical record noted a history of COPD and that the Veteran continued to smoke. An October 2001 VA radiological study revealed a normal chest. A January 2001 VA medical record noted a history of lung cancer status-post lobectomy in 1996. The physician noted the Veteran continued to smoke and had a chronic cough. An October 2002 VA medical record shows the Veteran was assessed with obstructive lung disease. The Veteran complained of a sudden onset of dyspnea that had woken him up. A February 2012 VA medical record noted newly diagnosed severe COPD. The Veteran reported being unaware he had COPD. A February 2015 VA medical record noted the Veteran reported being diagnosed with COPD approximately one and a half years prior. During an August 2016 Board hearing, the Veteran testified that during service he performed maintenance aboard the USS Bennington, including painting which included chipping off old paint revealing a red lead primer paint underneath. In addition, the Veteran testified that he was exposed to asbestos fibers. With regard to his lung cancer, he asserted that the first symptoms occurred in 1996 when X-ray reports showed spots on his lung. The Veteran's representative asserted that the VA had never addressed whether the Veteran's lung cancer or COPD were due to exposure to asbestos. At a May 2017 VA respiratory examination, the Veteran was diagnosed with lung cancer status post left lobectomy and COPD. The examiner noted the onset of the Veteran's lung cancer dated to 1996. The examiner noted the onset of the Veteran's COPD two to three years prior. The examiner opined that it was "less likely than not (less than 50 percent probability)" that the claimed lung cancer and COPD "was incurred in or caused by the claimed in-service injury, event or illness." The examiner found insufficient evidence to establish a clinical correlation or causal nexus between the lung cancer and COPD and in-service military or environmental exposure. The examiner stated that she was unable to confirm if the lung cancer or COPD were the result of the Veteran's time in service without resorting to mere speculation. As a result, the examiner found that a nexus had not been established for either condition. As noted above, in order to establish entitlement to service connection, there must be (1) 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) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). While the evidence establishes the Veteran was diagnosed with lung cancer for which he underwent a left upper lobectomy in 1996, and COPD in February 2012, the competent evidence of record does not establish a nexus between either condition and the Veteran's lay statements that he was exposed to asbestos, lead paint or other environmental hazards while serving aboard the USS Bennington. In this regard, the Board finds the May 2017 VA examination the most probative evidence of record. After conducting an in-person examination, and upon review of the claims file including the relevant medical records, the examiner opined that the Veteran's lung cancer and COPD were "less likely than not (less than 50 percent probability) incurred in or caused" by service. The examiner based her opinion on a lack of sufficient evidence to establish a clinical correlation or causal nexus between the development of lung cancer or COPD and in-service military or environmental exposure. The Board does recognize the Veteran's lay statements linking his lung cancer and COPD to in-service environmental exposure, to include herbicides, lead paint and asbestos. With regard to lay evidence of a nexus, lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In this vein, the Board must consider the type of condition specifically claimed and whether it is readily amenable to lay diagnosis or probative comment on etiology. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran is competent to report purported symptoms such as pain or whether he has received a diagnosis from a medical professional. 38 C.F.R. § 3.159(a)(2) (2017); Barr v. Nicholson, 21 Vet. App. 303 (2007). However, without evidence showing that he has medical training or expertise, he cannot competently provide a medical nexus opinion between a current diagnosis, such as lung cancer and COPD, and an in-service event, such as environmental exposures during service. 38 C.F.R. § 3.159(a)(1)-(2) (2017); Jandreau v. Nicholson, 492 F.3d 1372 (2007). Additionally, as noted above, the Veteran has not been found to have been exposed to herbicides during service. In any event, to the extent the Veteran may be competent to opine as to medical etiology, the Board finds the Veteran's lay assertions in the present case are outweighed by the May 2017 VA medical examiner's opinion, who determined that the there was no nexus between either the Veteran's lung cancer or COPD and service. The examiner has training, knowledge, and expertise on which she relied to form her opinion, and she provided a persuasive rationale. Importantly, there is no medical evidence to the contrary. Moreover, with respect to herbicide exposure, there is no evidence, outside of the Veteran's own assertions, that he was actually exposed to herbicides. He has not explained how he know he was exposed to herbicides, and presumably he is assuming that the bodies and equipment he came into contact with must have contained herbicide residue. As noted previously, there is no presumption that once the human remains and equipment left Vietnam that they remained exposed to herbicides, or that they otherwise retained herbicide residue. For the Veteran to simply assume they must have contained herbicide residue is not even remotely sufficient to establish that they in fact did contain herbicide residue to which he was exposed. Thus, the Board finds that the third Shedden requirement has not been met. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claims for service connection for lung cancer and COPD. The claims are denied. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). ORDER Entitlement to service connection for lung cancer, including on a secondary basis, to include as due to environmental exposures, to include exposure to herbicides, is denied. Entitlement to service connection, including on a secondary basis, for COPD, to include as due to environmental exposures, to include exposure to herbicides, is denied. REMAND In December 2016, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to obtain VA examinations to determine the nature and etiology of the Veteran's service connection claims for diabetes and hypertension. The Board noted that during an August 2016 Board Hearing, the Veteran asserted that his diabetes and hypertension were due to exposure to environmental hazards while aboard the USS Bennington, including lead paint. Alternatively, the Veteran asserted that his diabetes and hypertension were secondary, including on an aggravation basis, to his acquired psychological disorder. At the time of the December 2016 Board Remand, the Veteran was not service connected for an acquired psychological disorder. However, as noted above, during the pendency of the appeal an August 2017 rating decision granted service connection for an acquired psychological disorder. The Veteran was provided VA examinations that occurred in May 2017. For both claimed conditions, the examiner opined that it was "less likely than not (less than 50 percent probability)" that the diabetes and hypertension were "incurred in or caused by the claimed in-service injury, event or illness." The examiner found insufficient evidence to establish a clinical correlation or a nexus between the diagnosed diabetes and hypertension and in-service military or environmental exposure. As a result, the examiner found that a nexus had not been established. However, the examiner did not provide a medical opinion as to whether the claimed conditions were caused or aggravated by the Veteran's recently service-connected acquired psychological disorder. VA's duty to assist a claimant includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d)(1) (2012); 38 C.F.R. § 3.159(c)(4) (2017). To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, the Board finds that the claims file should be returned to the examiner who conducted the May 2017 examinations, and that addendum medical opinions addressing the nature and etiology of the Veteran's service connection claims should be provided. Accordingly, the case is REMANDED for the following action: 1. Refer the Veteran's claims file to the VA examiner who provided the May 2017VA examinations for the Veteran's service connection claims for diabetes and hypertension. The entire claims file, to include a complete copy of this Remand, must be made available to the examiner. If the reviewer is no longer available, or the reviewer determines that another examination is necessary to arrive at any requested opinion, an examination should be scheduled. The examiner should provide the following opinions: Diabetes Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed diabetes mellitus II was chronically worsened by the Veteran's service-connected psychological disorder? Hypertension Is it at least as likely as not (50 percent or greater probability) that any diagnosed hypertension was chronically worsened by the Veteran's service-connected psychological disorder? The examiner must provide a full rationale for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 2. Then, readjudicate the claims remaining on appeal. If any decision remains adverse to the Veteran, issue a statement of the case and allow the appropriate time for response. Then return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs