Citation Nr: 1805657 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 08-38 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a respiratory disorder, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K.M. Walker, Associate Counsel INTRODUCTION The Veteran served active duty in the United States Air Force from August 1961 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In July 2014, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is of record. In August 2014, September 2015, and April 2017, the Board remanded the case for further development. That development has been completed, and the case has since been returned to the Board. This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing systems. Accordingly, any future consideration of this Veteran's case should take into account the existence of these electronic records. FINDING OF FACT The Veteran has not been shown to have a current respiratory disorder that manifested in service or that is otherwise related to his military service, including any exposure therein. CONCLUSION OF LAW A respiratory disorder was not incurred in active service and may not be presumed to have been so incurred. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board notes that the Veteran has challenged the adequacy of the 2016 opinion from the Veterans Health Administration (VHA). Specifically, in February 2017, he asserted that the VHA physician did not address information relevant to the claim and had included some inaccurate statements. However, the Veteran did not specify the alleged misstatements or the information not considered. As discussed below, the Board finds that the VHA opinion is adequate, as it is predicated on an accurate review of the claims file and the Veteran's medical history, including his own lay statements. The examiner considered all pertinent evidence of record and supported the opinions with a complete rationale, including consideration of medical literature. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings liberally does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The term "chronic disease," whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 U.S.C. § 1101 and 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The claimed disorder in this case is not listed as a chronic disease in the regulation. In addition, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(d)(6)(i). Section 3.307(d)(6) also provides that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(d)(6)(iii). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. The diseases presumed to be associated with herbicide exposure include: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Secretary of the Department of Veterans Affairs has determined that 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, 67 Fed. Reg. 42600-42608 (2002). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding 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). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a respiratory disorder. The Veteran has claimed that he developed a respiratory disorder due to exposure to jet fuels, aircraft exhaust, and herbicide agents while in service. See e.g. December 2008 statement and substantive appeal. He has stated that he worked on the flight line as an air policeman, and in an April 2009 statement, he reported landing in Saigon en route to the United States from Thailand. The Veteran's service personnel records show that he did serve as a patrolman and as an air policeman. They also include travel orders showing a September 1966 stopover in Saigon, and the RO appears to have conceded his herbicide exposure in service. Nevertheless, even assuming the Veteran had such exposures in service, the Board has determined that his current respiratory disorder did not manifest in service and is not otherwise related to his military service, including any exposures therein. The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of a respiratory disorder, except for an upper respiratory infection for which he was treated for in September 1962. In fact, an October 1966 separation examination found his lungs were clear, and he denied having shortness of breath. There is also no medical evidence showing that he had a respiratory disorder shortly after service or for many years thereafter. Private treatment records indicate the Veteran was not diagnosed with COPD until 2001, which was approximately 35 years after his discharge from service. Indeed, the Veteran also reported an onset after service. See e.g. December 2008 substantive appeal (diagnosed with chronic obstructive pulmonary disease (COD) in 1995); July 2014 hearing transcript (breathing problems began seven or eight years ago). In addition to the lack of evidence showing the claimed disorder manifested during active service or within close proximity thereto, the preponderance of the evidence of record does not link any current diagnosis to the Veteran's military service. A July 2015 VA examiner opined that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In so doing, he noted that COPD is not one of the conditions recognized by evidence-based medicine as being due to herbicide exposure. He also stated that smoking is a major factor for developing COPD, and based on his records, the Veteran used to smoke one pack per day. Thus, the examiner concluded that his current COPD was less likely than not caused by an in-service event. A January 2016 VA examiner also opined that it is not at least as likely as not that the Veteran's COPD was related to his military service, to include his exposure to jet fuel fumes and herbicides. In rendering his opinion, the examiner considered the evidence of record, including the service treatment records, post-service medical records, VA examinations, and the NIH Update 2012 indicating that there is inadequate or insufficient evidence to determine an association between COPD and herbicide exposure. He noted that the Veteran had an upper respiratory infection in September 1962 and pharyngitis in January 1963 and that the Veteran had smoked an average of pack of cigarettes per day from 1958 to 2012. The Veteran had reported that he had no medical visits from 1966 to 1995 and indicated that the medical records from 1995 to 2006 had been lost. He had also told the examiner that he had been primarily employed as a prison guard after service and was a prison agricultural supervisor for approximately six years, but was not exposed to herbicides or pesticides even though he was in the agriculture fields during that time. He was also employed as a mechanic for one year working on fuel injection pumps and vehicle electrical systems. The Board requested an advisory medical opinion from the Veterans Health Administration (VHA). In a June 2016 letter, the VHA physician opined that it is at least as likely as not that the Veteran's COPD is due to cigarette use and not to exposure to herbicides, aircraft exhaust, and/or jet fuel. In so doing, he had considered the Veteran's medical history, smoking history, lay statements, and the NIH study. However, the Board found the rationale to be insufficient regarding jet fuel and aircraft exhaust and requested an addendum to support his opinion. In an October 2016 addendum, the VHA physician reiterated his conclusion that the Veteran's COPD was not related to his exposure to jet fuel. He cited to medical literature in support of his opinion There is no medical opinion otherwise relating the Veteran's current respiratory disorder to his military service. The Board does not that the Veteran had indicated that he was submitting private medical evidence to support his claim. However, in the April 2017 remand, the Board noted that such evidence was illegible, and later that month, he was again notified in a letter that the evidence was illegible and was provided the opportunity to resubmit such evidence. To date, the Veteran has not responded or provided additional evidence. The Board has also considered the Veteran's statements that his current respiratory disorder is related to his military service, including exposure therein. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of the disorder, falls outside the realm of common knowledge of a lay person, particularly in light of the delayed onset and other risk factor of smoking. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, even assuming that the Veteran is competent to provide such an opinion, the Board finds that the VA medical opinions are more probative, as they were provided by medical professionals with knowledge, training, and expertise and are supported by a complete rationale based on such knowledge. The examiners also reviewed the claims file and considered the Veteran's reported history and lay statements as well as medical literature. In addition, to the extent that the Veteran has indicated that he smoked during service, for claims filed after June 9, 1998, the law prohibits service connection of a death or disability on the basis that it resulted from an injury or disease attributable to the use of tobacco products by a veteran during active duty service. 38 U.S.C. § 1103 (2012); 38 C.F.R. § 3.300(a) (2017). "Tobacco products" means cigars, cigarettes, smokeless tobacco, pipe tobacco, and roll-your-own tobacco. Id. Thus, the Board cannot grant service connection based on the Veteran's use of cigarettes during his military service. Based on the foregoing, the Board finds that the Veteran's respiratory disorder did not manifest in service and is not causally or etiologically related to his military service, to include any exposures therein. The preponderance of the evidence is against the Veteran's claim, and as such, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for a respiratory disorder is not warranted. ORDER Service connection for a respiratory disorder is denied. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs