Citation Nr: 18141197 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 14-09 205A DATE: October 9, 2018 ORDER Service connection for chronic obstructive pulmonary disease (COPD), for substitution purposes, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran had COPD due to a disease or injury in service, to include specific in-service event, injury, or disease. CONCLUSION OF LAW The criteria for service connection for COPD have not been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309(e). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1967 to June 1970. He passed away in January 2018 and the appellant is his surviving spouse. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2016, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board notes the claim was dismissed by the Board in May 2018; however, the Veteran’s spouse submitted a substitute party application in February 2018 which was later granted. Entitlement to service connection for COPD. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements above is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013). Regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Further, a disorder which is aggravated by a service-connected disability may be service connected to the degree that aggravation is shown. Allen v. Brown, 7 Vet. App. 439, 449 (1995); 38 C.F.R. § 3.310(b). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). If a veteran served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, he or she will be presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307. Certain diseases, including lung cancer, may be presumed service-] connected if a veteran was exposed to herbicide agents in service, even if there is no record of the disease during service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). However, the presumption of in-service incurrence may be rebutted with competent affirmative evidence to the contrary; such evidence need not be conclusive but should be made with sound medical reasoning and in the consideration of all evidence of record. 38 C.F.R. § 3.307(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Analysis The Veteran contended that his COPD disability was related to his exposure to Agent Orange during his active military service. A VA examiner in September 2012 diagnosed the Veteran with COPD; thus the first element of a service connection claim has been met. The Veteran’s personnel records show that he served in Vietnam from January 1968 to January 1969; therefore, exposure to herbicides is conceded. 38 C.F.R. § 3.309(e). The June 1967 service entrance examination and accompanying Report of Medical History are both silent for pulmonary abnormalities. Service treatment records reveal in October 1969 the Veteran sought treatment for anorexia myalgia nonproductive cough that had been present for 2 days. Clinical observations recorded a red pharynx, clear lungs, and negative impression of the ears. The assessment was acute respiratory disease (ARD). He was given quarters for 24 hours. Subsequently, two days later upon his return visit for follow-up treatment the clinician annotated that he was symptomatically improved with a clear pharynx, clear lungs, and some nasal stuffiness. The record shows that no other complaint, treatment, or diagnosis occurred during his active service related to COPD or any other pulmonary issue. At discharge, his June 1970 separation examination was once again silent for pulmonary issues. There was no accompanying Report of Medical History at discharge. Following service, treatment records reveal that the Veteran did not seek treatment for COPD until June 2008. A chest X-ray showed mild hyperinflation consistent with COPD. When advised of the results of the X-ray the Veteran stated that he had stopped smoking approximately 20 years ago. He also stated that he thought his COPD was related to exposure to Agent Orange. In September 2012, the Veteran was afforded a VA examination to determine the etiology of his COPD. He stated that he experienced shortness of breath (SOB) during moderate exertion such as walking up a flight of stairs. Moreover, he stated that he must pace himself or an activity like walking fast would cause SOB. The VA examiner diagnosed COPD. However, the examiner opined the condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The rationale was based on the fact that after the one-time ARD incident in service, there were no other pulmonary incidents during service; thus, the condition was considered transitory in nature without residuals. In addition, his discharge examination was negative for complaints of COPD and he was not diagnosed with COPD until 2009. Based on the evidence above, the Board finds there is no causal relationship or nexus between the Veteran’s COPD and his military service. The examiner clearly and thoroughly explained why it was less likely than not that the Veteran’s COPD was related to his active service. The examiner reviewed the medical history, considered lay testimony, and provided a reasonable rationale for the Board to evaluate the claim. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Additionally, the Board notes that COPD is not among the diseases subject to presumptive service connection based on exposure to herbicides under the current law. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). Thus, presumptive service connection for COPD on the basis of herbicide exposure, specifically Agent Orange, is not warranted here. The Board has also considered the lay evidence in this case, in particular the Veteran’s statements, that he believed his COPD was caused by exposure to Agent Orange, during his June 2016 video conference hearing. The Board finds the Veteran to have been credible to report his observable symptoms. Layno v. Brown, 6 Vet. App. 465, 469 (1994). As noted at his videoconference hearing, he only began experiencing SOB 10 years prior to the hearing in 2006, which was 36 years after service. Furthermore, while 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), this falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In other words, although the Veteran was competent to report the presence of symptoms, COPD is not the type of condition that is amenable to mere lay diagnosis - specific findings are needed to properly assess and diagnose COPD, and to determine its etiology. Jandreau; Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In sum, the Veteran manifested a disability and an in-service incident regarding acute respiratory disease; however, a nexus is not shown between the Veteran’s COPD disability and his military service. The preponderance of the evidence weighs against a finding for service connection for the COPD, for substitution purposes. The benefit-of-the-doubt rule has been considered but the weight of the evidence is against the claim. 38 C.FR. § 3.102. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. M. Williams, Associate Counsel