Citation Nr: 18143020 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 13-35 068 DATE: October 18, 2018 ORDER Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD), asthma, and chronic bronchitis; to include as due to herbicide agent exposure, is denied. FINDINGS OF FACT 1. The Veteran is currently diagnosed with the respiratory disabilities of COPD, asthma, and chronic bronchitis. 2. The Veteran served in the Republic of Vietnam while on active duty and was exposed to Agent Orange. 3. The currently diagnosed respiratory disabilities were not incurred in and are not etiologically related to service. 4. COPD and chronic bronchitis are caused by the use of tobacco products. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD, including as due to herbicide agent exposure, have not been met. 38 U.S.C. §§ 1101, 1103(a), 1110, 1112, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.300, 3.303, 3.307, 3.309, 3.326. 2. The criteria for service connection for asthma, including as due to herbicide agent exposure, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326. 3. The criteria for service connection for chronic bronchitis, including as due to herbicide agent exposure, have not been met. 38 U.S.C. §§ 1101, 1103(a), 1110, 1112, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.300, 3.303, 3.307, 3.309, 3.326. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1965 to January 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2015, the Board denied service connection for a respiratory disability. The Veteran appealed the Board decision to the Court of Appeals for Veterans Claims (Court). In a March 2017 memorandum decision, the Court vacated the July 2015 Board decision and remanded the matter for the Board to obtain an addendum to an October 2011 VA medical opinion. In September 2017 the Board remanded the case for that action. 1. Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD), asthma, and chronic bronchitis; to include as due to herbicide agent exposure Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in §3.309(a) may be considered for service connection under 38 C.F.R. § 3.303 (b) (2017). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In this case, asthma, COPD, and chronic bronchitis are not “chronic diseases” listed under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303 (b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. The following diseases are deemed associated with herbicide exposure under VA law: AL amyloidosis, Chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus 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, early onset peripheral neuropathy, Porphyria cutanea tarda, Prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309 (e). As such, asthma, COPD, and chronic bronchitis are not disabilities for which presumptive service connection based exposure to herbicides may be granted. Id. Notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff’g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The Veteran contends that he has one or more respiratory disabilities caused by exposure to Agent Orange in Vietnam. In its March 2013 decision, the Board explained that review of the service treatment records showed that the Veteran was stationed in the Republic of Vietnam; therefore, the Veteran is presumed to have been exposed to herbicide agents. Further, the VA examiner at the October 2011 VA respiratory examination diagnosed both asthma and COPD. VA and private treatment records also reflect that the Veteran has been treated for asthma and COPD. The report from the October 2011 VA respiratory examination reflects that the VA examiner addressed the symptoms, but did so without diagnosing chronic bronchitis, while various VA and private treatment records appear to include a diagnosis of chronic bronchitis. Upon a complete review of the record, it appears that references to bronchitis also discuss the symptoms of asthma and/or COPD. As the evidence of record as a whole is sufficient to address the question of chronic bronchitis as part of the appeal for service connection for a respiratory disability, the Board finds that all the respiratory symptoms claimed or diagnosed as chronic bronchitis have been addressed. After a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against a finding that the currently diagnosed asthma, COPD, and/or chronic bronchitis had their onset in service or are otherwise causally or etiologically related to service. Service treatment records reflect that the Veteran was seen in February 1968 with an upper respiratory infection with apparent associated chest pain. He was not otherwise noted to complain of, and was not diagnosed or treated for, a respiratory disability or symptoms of a respiratory disorder. On a November 1968 medical history report completed at the same time as the service separation examination, the Veteran denied having asthma, shortness of breath, or chronic cough. The Veteran reported chest pain at that time. As such, the Board does not find that the Veteran was diagnosed with and/or treated for the disabilities of COPD, asthma, and/or chronic bronchitis during service, and did not have symptoms of such in service. The service treatment records appear to be complete, and complaints of respiratory symptoms would have been recorded had the Veteran sought treatment during service. Service treatment records reflect that the Veteran complained of or sought treatment for other disorders, which reflects that he would similarly have sought treatment for respiratory complaints or symptoms during service. For example, as noted, at a November 1968 examination during service (in conjunction with service separation) the Veteran reported a history of chest pains. He also sought treatment for a cold and a sprained leg. As a result, the absence of any in-service complaint, finding, or reference to treatment for a respiratory injury, disease, or related symptoms weighs against finding that the Veteran incurred a respiratory injury or disease in service. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran’s assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); Cf. AZ v. Shinseki, 731 F.3d 1303, 1315-18 (Fed. Cir. 2013); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the absence of a notation in a record may be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred); see also Fed. R. Evid. 803 (7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). The report from the October 2011 VA respiratory examination reflects that the Veteran was first diagnosed with asthma on or about 1999, and was first diagnosed with COPD in May 2011. Under medical history, it was noted that the Veteran “smoked on and off from age 17 until about one year ago.” The Board notes that multiple VA and private treatment records have noted the Veteran’s history of smoking. After reviewing the record, the Board finds that the smoking history referenced in a December 2007 VA treatment record to be a fair reflection of the Veteran’s smoking history. Specifically, the treatment record reported a smoking history of one-and-a-half packs per day for 43 years, followed by a less than half-a-pack per day habit until the Veteran finally quit on or about 2010. At the conclusion of the examination, the VA examiner first opined that the COPD was not due to herbicide exposure, as it was likely due to the Veteran’s smoking history. Further, the VA examiner opined that the asthma was not due to herbicide exposure. The VA examiner explained that, based upon a review of the medical literature, the Veteran’s clinical documentation, and the examiner’s own clinical experience, there was no objective evidence of a respiratory disability during service, and there is no data in the literature to support a causal relationship between herbicide/Agent Orange exposure and the development of either COPD or asthma. On the addendum report completed in October 2017, the October 2011 VA examiner again stated that the Veteran’s claimed respiratory disability did not begin in service, is not related to service, and is not related to herbicide exposure: Rationale: The Veteran has respiratory conditions of asthma and COPD with chronic bronchitis which are well documented in his medical records. These respiratory conditions were diagnosed years after separation from service per available records. There is no objective evidence of asthma, COPD, or any other chronic respiratory condition during active duty or within close proximity to separation. Review of records notes a complaint of a cold during active duty which is an acute and transitory condition that resolved. Also, the Veteran’s separation exam is silent for a chronic respiratory condition but does note Veteran reported “pain or pressure in chest” with the examining physician documenting “occasional sharp pain in chest, no associated symptoms, no treatment required. NCNS (no complications, no sequelae)”. It should be noted that a complaint or reported symptomatology of occasional chest pain requiring no treatment which resolved on its own is not indicative of asthma, COPD, or any other chronic respiratory condition. Per records, the chest pain was an occasional and transitory event with no evidence of chronicity. Thorough review of available records notes the earliest documentation of the symptoms and diagnosis of asthma and COPD was in the 1990’s; decades post service. Thus, there is no nexus between the Veteran’s current respiratory conditions (asthma or COPD with bronchitis) and active duty service. Asthma, COPD, and bronchitis are not presumptive conditions of Agent Orange. Review of Institute of Medicine report released in 2016 finds inadequate or insufficient evidence of association of these conditions to herbicide exposure. A November 2009 private treatment record from a pulmonary clinic reflects that a private pulmonologist attributed the Veteran’s chronic bronchitis to continued cigarette smoking. Further, as reflected in a March 2008 VA treatment record, a VA physician assessed “COPD/Chronic Bronchitis/Tobacco Habit,” thus relating the COPD and chronic bronchitis to the Veteran’s long history of smoking. VA has received extensive VA and private treatment records. There is no indication from these records that any physician, VA or private, has attributed one or more respiratory disabilities to herbicide agent exposure in service. The Board notes that in September 2011 the Veteran’s private physician, Dr. R, submitted a letter to VA indicating that an opinion concerning the causal relationship of the Veteran’s respiratory disabilities and Agent Orange would be deferred to Dr. B, the Veteran’s pulmonologist. To date, no such opinion has been received by VA, and there is no indication that any such opinion is forthcoming. While the Board does not weigh this absence of evidence against the Veteran, the Board does find that the Veteran had ample time to submit any such opinion, and, considering all the other evidence of record, the Board need not remand the instant decision to inquire as to the status of any such opinion. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is not a one-way street). Based on the above, the Board finds that service connection for a respiratory disability, including COPD, asthma, and chronic bronchitis, is not warranted. The VA examiner’s opinion at the October 2011 VA examination and her addendum opinion dated in October 2017 are highly probative evidence that the Veteran’s COPD is a result of smoking, including smoking during service. The VA examiner reviewed the claims file, interviewed the Veteran, and conducted the appropriate testing. The VA examiner had the requisite medical expertise to render a medical opinion regarding the etiology of the COPD, had sufficient facts and data on which to base the conclusion, and supported the opinion that the COPD is related to the Veteran’s tobacco use. Further, the VA examination report and addendum opinion reflect that the VA examiner relied on the medical literature and her own clinical experience in opining that the COPD and asthma were not caused by exposure to herbicide agents in service. Nothing in the record indicates that the VA examiner did not conduct adequate research or lacks the knowledge or training necessary to render such an opinion. The Board finds the October 2011 VA examination report to be additional probative evidence relating the Veteran’s current disorders to smoking. Further, the Veteran’s own pulmonologist, in a November 2009 pulmonary clinic treatment record, stated that the chronic bronchitis was due to continued cigarette smoking. The Board has no reason to doubt that the Veteran’s pulmonologist would have been aware that the Veteran may have been exposed to herbicides in service. As such, the Board finds the November 2009 private treatment record to be highly probative. While the Veteran has contended that the currently diagnosed respiratory disabilities were caused by exposure to herbicide agents in service, the Board does not find that under the facts of this case, where there is no in-service symptomatology and no credible symptoms or treatment until many years after service, the Veteran is competent to provide evidence of an etiological nexus between a respiratory disability and herbicide exposure. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). The etiology of the Veteran’s COPD, asthma, and chronic bronchitis involve complex medical etiological questions dealing with the origin and progression of the respiratory system, and such disabilities are diagnosed primarily on clinical findings and physiological testing. While the Veteran is competent to relate respiratory symptoms experienced at any time, he is not competent in this case to opine on whether there is a link between a respiratory disability and active service, including herbicide agent exposure during active service, because such a medical opinion requires specific medical knowledge and training that the Veteran has not been shown to possess. With respect to the Veteran’s smoking history, to the extent that tobacco use may be a causative factor in the development of the current COPD and chronic bronchitis, service connection may not be granted on the basis of tobacco use, even if such tobacco use began in service. See 38 U.S.C. § 1103; 38 C.F.R. § 3.300. The Veteran is competent to report smoking tobacco products during service; however, for claims filed after June 9, 1998, Congress has prohibited the grant of service connection for disability due to the use of tobacco products during active service. 38 U.S.C. §§ 1103 (a), 1110. The Veteran filed the current claim in May 2011; therefore, any respiratory disability that resulted from tobacco use during service is specifically excluded from service connection, which applies to the currently diagnosed COPD and chronic bronchitis. (Continued on the next page)   For the reasons laid out above, the Board finds the weight of the evidence to show that the currently diagnosed respiratory disabilities were not caused by exposure to herbicides in service. Further, the disabilities of COPD and bronchial asthma were a direct result of the Veteran’s tobacco use, which is barred by statute and regulation from service connection. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel