Citation Nr: 1805006 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 12-17 792A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a lung disability, to include chronic obstructive pulmonary disease (COPD). 2. Entitlement to service connection for a skin disability, to include as secondary to service-connected non-Hodgkin's disease. 3. Whether a reduction from 60 percent to 30 percent for coronary artery disease (CAD) effective February 1, 2013, was proper. ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had active service from October 1964 to October 1968. He died in November 2014. At the time of his death, the above appeals were pending. The appellant is the Veteran's surviving spouse and has been substituted in his place for purpose of pursuing these appeals. 38 U.S.C. § 5121A(a)(1) (2012). These matters come before the Board of Veterans' Appeals (Board) on appeal from two decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In January 2010, the RO denied service connection for COPD and a skin disorder. In November 2012, the RO reduced the assigned evaluation for CAD from 60 percent to 30 percent effective February 1, 2013. In June 2015, the Board affirmed the reduction of CAD to 30 percent. The appellant appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR) filed by the parties, the Court remanded that issue back to the Board in October 2016 for further adjudication. The Board also remanded the COPD and skin claims for additional development in June 2015. In March 2016, the Board again remanded the skin claim and denied service connection for COPD. The appellant appealed that denial to the Court, which remanded the matter back to the Board pursuant to a November 2016 JMR. FINDINGS OF FACT 1. A lung disability has not been shown to be etiologically related to service, to include herbicide agent exposure in service. 2. Hyperpigmentation and erythema of the neck was the result of treatment for service-connected non-Hodgkin's disease. 3. The Veteran's left ventricular ejection fractions, METs levels, and ability to function under the ordinary conditions of life and work improved from the 60 percent level to the 30 percent level after July 2010. CONCLUSIONS OF LAW 1. The criteria for service connection for a lung disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for hyperpigmentation and erythema of the neck have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 3. The criteria for reduction of the rating for coronary artery disease from 60 percent to 30 percent effective from February 1, 2013, have been met. 38 U.S.C. §§ 1155, 5107, 5117 (2012); 38 C.F.R. §§ 3.105(e), 3.344, 4.104, Diagnostic Code 7005 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. 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 claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) (2017). Service connection is warranted for a disability which is proximately due to, aggravated by, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2017). A finding of secondary service connection requires competent medical evidence to connect the asserted secondary disability to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997). A. COPD The Board initially notes that the Veteran had also filed a separate claim for service connection for asbestosis, and that this claim was denied in the Board's June 2015 decision. Therefore, the current claim will not address findings already discussed in the context of the previously denied asbestosis claim. Private treatment records reflect a diagnosis of COPD in January 2008, with ongoing diagnoses of the condition through the appeal period. Therefore, element (1) of service connection, a current disability, has been satisfied. With respect to element (2), the Veteran reported that he was exposed to a smoke bomb during his service in Vietnam, and this exposure burned his throat and lungs. See May 2014 Statement. However, service treatment records are negative for any complaints, treatment, or diagnoses related to a lung condition. The Veteran underwent enlistment and separation examinations in October 1964 and September 1968, respectively. Both examinations recorded normal findings, and the Veteran denied a history of any relevant symptoms, such as a chronic cough, shortness of breath, chest pain, or asthma. Moreover, during his period of service, the Veteran sought treatment for a thumb laceration, stuffy nose, and eye problem. Therefore, it appears he was reporting various medical conditions during service without reporting any problems related to the lungs, which suggests that no problems were present at the time. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). In addition, the Veteran reported in his statement that he only remembered the smoke bomb incident after August 2013, several years after he initially filed his claim and almost 45 years after his discharge from service. He also could not recall how he got back to his base or if he sought treatment. These statements suggests that the Veteran's memory of the incident may be incomplete or inaccurate, which further lessens its credibility. Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) (notwithstanding the declarant's intent to speak the truth, statement may lack credibility because of faulty memory). For these reasons, the evidence is against a finding that the Veteran sustained a lung injury as a result of a smoke bomb in service. The Veteran also asserted that his COPD is due to herbicide agent exposure in service. Having served in Vietnam during the Vietnam Era, the Veteran is presumed to have been exposed to herbicide agents in service. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). This exposure satisfies element (2). With respect to element (3), a link between current COPD and the in-service herbicide agent exposure, private treatment records dated October 2011 include a statement that the Veteran was exposed to Agent Orange many years ago when he was in the U.S. Air Force, and that this is what caused his COPD. As noted in the Board's June 2015 Remand, this statement is contained in the "History of Present Illness" section of the treatment record, and it is unclear whether it represents an actual opinion from the treating physician or merely a restatement of a history as relayed by the Veteran. However, even assuming it is a competent medical opinion from the treating physician, it is not supported by any accompanying rationale or explanation, and therefore not sufficient to establish a link between COPD and herbicide exposure in service. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the physician to provide a basis for his/her opinion affects the weight or credibility of the evidence). Indeed, the applicable laws and regulations provide that if a veteran was exposed to herbicide agents in service, certain enumerated diseases will be presumed to be the result of such exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). However, COPD is not among these listed conditions. VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996). See, too, Diseases Not Associated With Exposure to Certain Herbicide Agents, 68 Fed. Reg. 27,630 (May 20, 2003); Health Outcomes Not Associated With Exposure to Certain Herbicide Agents, 72 FR 32395-01 (June 12, 2007). More recently, the Secretary has clarified that a presumption of service connection based on exposure to herbicide agents used in the Republic of Vietnam during the Vietnam Era is not warranted for respiratory disorders, among other conditions. See Notice, 72 Fed. Reg. 32,395 -32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258 - 21260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). In addition, a November 2015 VA examiner concluded that the Veteran's COPD was secondary to his years of cigarette smoking. This is consistent with records from June 2006 and January 2008, which noted a 30-year history of smoking two to three packs per day. The January 2008 records also include a diagnosis of COPD/chronic tobacco abuse, asthmatic component. The Board also obtained a Veterans Health Administration (VHA) opinion in October 2017. That examiner further clarified that there are generalized estimates in the medical literature that anywhere from 10 to 25 percent of smokers develop COPD, though up to 50 percent have subtle evidence of COPD. Given the current literature regarding the high association of years/burden of tobacco usage and the risk of developing COPD, the examiner concluded that smoking was the more probable cause of COPD. She also noted that there was nothing in the record to support a finding that COPD is etiologically linked to Agent Orange exposure. There is no other competent evidence linking the Veteran's COPD to his herbicide agent exposure in service. The Board has considered the Veteran's own statements, and those of the appellant, made in support of the claim. However, they have not demonstrated any specialized knowledge or expertise to indicate either of them is capable of rendering a competent medical opinion. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of COPD falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). B. Skin The record reflects various skin diagnoses beginning in 2008. Private treatment records dated June 2008 show the Veteran reported a skin problem after an injury with a nail gun. He denied any prior history of skin problems. He was diagnosed with urticaria. Chronic sun damage was also noted. In July 2008, the Veteran had hyperpigmentation and erythema of the neck, which was acknowledged to be an "expected skin reaction" from radiation therapy associated with his lymphoma. During a November 2010 VA examination, he was diagnosed with sun-damaged skin of the bilateral upper extremities. In April 2014, he was diagnosed with seborrheic keratosis. Collectively, these diagnoses satisfy element (1) of service connection. With respect to element (2), an in-service incurrence, the Veteran attributed his skin conditions to the previously noted smoke bomb incident. However, as before, service treatment records are negative for any complaints or other findings of a skin condition in service, and the Board has concluded that the Veteran's account of this incident is not persuasive. He has also attributed his skin condition to herbicide agent exposure. As discussed, certain enumerated diseases will be presumed to be the result of such exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). However, none of the diagnosed skin conditions is among these listed conditions, and VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. The October 2017 VHA examiner also stated that there was no evidence to support a finding that any skin changes were specifically caused by Agent Orange exposure. She noted that there was no mention that the Veteran had years of ongoing skin pathology. Rather, the longest ongoing period of recurrent active skin lesions was most of the 2008 year when he had chronic urticaria that was autoimmune in nature. She stated that it was well-established in the medical literature that the etiology of urticaria is rarely, if ever, determined, and it was usually self-limited. The Veteran had also argued that he had a skin condition secondary to his service-connected non-Hodgkin's lymphoma. However, an April 2016 VA opinion stated that skin conditions associated with a nail gun injury or sun damage are, by definition, not secondary to lymphoma. The examiner further stated that there was no documentation that these conditions were aggravated by lymphoma beyond their normal progression. The October 2017 VHA examiner added that urticaria was a very common condition affecting about one in five people of all ages throughout a lifetime, and that there was no evidence in the literature to support a link between urticaria and non-Hodgkin's lymphoma. She also stated that while some skin conditions existed in parallel with the Veteran's lymphoma, there was no clear evidence that they were aggravated by lymphoma. Urticaria preceded the Veteran's radiation therapy, and there was no mention of it after September 2008. For these reasons, service connection for urticaria, seborrheic keratosis, or sun-damaged skin is not warranted. The VHA examiner did note that the Veteran had a period of induration at the site of his left neck radiation therapy, but that these changes were not mentioned again after 2008. The Veteran filed his claim in January 2009. Generally, a current disability is shown for service connection purposes if a condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet. App. 319 (2007). Consideration must also be given to diagnoses which predate the filing of a claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). A determination that a diagnosis is sufficiently proximate to the filing of a claim so as to constitute evidence of a "current diagnosis" is a factual finding to be made by the Board in the first instance. Id. at n.4. Here, because the hyperpigmentation and erythema of the left neck were present within six months of the Veteran's claim, the Board will extend the benefit of the doubt to the appellant and conclude that these findings represent a "current" disability. As they were clearly the result of treatment for the Veteran's service-connected lymphoma, service connection is appropriate for those specific manifestations. II. Reduction Where a reduction in an evaluation of a service-connected disability is considered warranted, and the lower evaluation would result in a reduction or termination of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons, and the AOJ must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The Veteran must also be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. 38 C.F.R. § 3.105(e), (i). The Veteran was notified in a March 2012 rating decision that VA was proposing to reduce the rating assigned for his coronary artery disease. The notification letter advising him of this proposed reduction as well as his opportunities to send additional evidence or request a hearing was also sent in March 2012. Therefore, the due process requirements regarding the reduction were met. The 60 percent rating for CAD was awarded in December 2010 and was in effect from January 2010. Therefore, it was effective for less than 5 years at the time it was reduced in November 2013. As a result, the regulations governing stabilization of disability evaluations found in 38 C.F.R. § 3.344(a) and (b) are not applicable. 38 C.F.R. § 3.344(c). Instead, reexaminations disclosing improvement will warrant a reduction in rating. Id. In any rating reduction, VA must determine that an improvement in a disability has actually occurred, and that it actually reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work. Brown (Kevin) v. Brown, 5 Vet. App. 413, 421 (1993); October 2016 JMR at 2. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO when the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated actual improvement. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). The Veteran's CAD was rated under 38 C.F.R. § 4.104, Diagnostic Code 7005. Under that code, a 10 percent rating is assigned when a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope or where continuous medication is required. The 30 percent rating contemplates a workload of greater than 5 METs, but not greater than 7 METs, which results in dyspnea, fatigue, angina, dizziness or syncope, or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram or X-ray. A 60 percent rating contemplates more than one episode of acute congestive heart failure in the past year, or workload of greater than 3 METs, but not greater than 5 METs, which results in dyspnea, fatigue, angina, dizziness or syncope; or, left ventricular dysfunction with an ejection fraction of 30 percent to 50 percent. One MET (metabolic equivalent) is defined as the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104. The initial grant of service connection was based in large part on a July 2010 VA examination which recorded an estimated METs level of 5 and a left ventricular ejection fraction of 50 percent. The METs level was consistent with walking up to half a mile or slowly climbing one flight of stairs. During the examination, the Veteran reported chest discomfort, dyspnea, dizziness, tiredness, and fatigue. The ejection fraction finding equates to a 60 percent rating. VA treatment records dated February 2011 reflect an ejection fraction of 63 percent, which does not meet the criteria for a 60 percent rating. During a July 2011 VA examination, the Veteran stated that he could ride a bike, take a brisk walk, and do lawn work with no difficulty or symptoms if not for his knee and lung conditions. However, a separate notation indicates that he could not differentiate the effect of his heart condition from his other medical problems. Additional treatment records from September 2011 show an ejection fraction of 55 percent, which is not consistent with a 60 percent rating. During a February 2012 VA examination, the Veteran was assessed with cardiac hypertrophy, a METs level of 7 to 10 and a left ventricular ejection fraction of 65 percent. These findings fall squarely within the criteria for the 30 percent rating. The examiner specifically stated that the Veteran's METs level was easily estimated based on his known disease, level of physical activity and reported symptoms. Indeed, the examination report notes that a METs level of 7 to 10 is consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, or jogging at 6 miles per hour. The report also documents that, at that activity level, the Veteran experiences fatigue, but not dyspnea, angina, dizziness, or syncope. The Veteran also reported during the examination that he had not experienced any chest pain since undergoing a heart catheterization in May 2011. VA records from July 2012, August 2013, and December 2013 showed ejection fractions of 54 percent, 45 percent, and 65 percent, respectively. The August 2013 finding is consistent with a 60 percent rating, though the July 2012 and December 2013 findings are not. A July 2014 VA examination noted a left ventricular ejection fraction of 55 percent, cardiac hypertrophy, and a METs level of 7 to 10. These findings are also consistent with the 30 percent rating. Based on the above, the reduction from 60 percent to 30 percent effective from February 1, 2013, was proper. Following the July 2010 VA examination, the only evidence which showed that the Veteran met the rating criteria for the higher 60 percent rating was the left ventricular ejection fraction recorded in August 2013. However, this appear to have been an isolated reading, and the Board finds it to be outweighed by the higher ejection fraction scores from February 2011, September 2011, July 2012, December 2013, and July 2014. The remaining findings, including METs levels, all correspond to the criteria for the 30 percent rating. As to whether this reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work, the Board notes that the METs assessments recorded during various VA examinations were based on the Veteran's level of physical activity and reported symptoms. These assessments provided a numerical measure of the Veteran's capacity to perform regular daily activities such as climbing stairs, walking or jogging, performing yard work, or shoveling snow. The fact that the levels recorded in February 2012 and July 2014 (7 to 10 METs) were higher than that recorded in July 2010 (5 METs) indicates that the Veteran's ability to perform such tasks before the onset of symptoms had increased. Therefore, actual improvement under the ordinary conditions of life and work has also been shown. For these reasons, the reduction from 60 percent to 30 percent for CAD from February 1, 2013, was proper. (CONTINUED ON NEXT PAGE) ORDER Service connection for a lung disability is denied. Service connection for hyperpigmentation and erythema of the neck is granted. The reduction from 60 percent to 30 percent for coronary artery disease from February 1, 2013, was proper. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs