Citation Nr: 18155593 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-21 004 DATE: December 4, 2018 ORDER Service connection for a left lung disability (claimed as a collapsed lung), as due to in-service herbicide exposure, is denied. Service connection for a right lung disability (claimed as a collapsed right lung with thoracotomy), as due to in-service herbicide exposure, is denied. Service connection for swallowing/esophageal problems (also claimed as esophagus moved over in chest), claimed as secondary to collapsed lungs, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s collapsed left lung is due to a disease or injury in service, to include presumed exposure to herbicides in service. 2. The preponderance of the evidence is against finding that the Veteran’s collapsed right lung with thoracotomy is due to a disease or injury in service, to include presumed exposure to herbicides in service. 3. The evidence does not show that the Veteran’s esophageal/swallowing problems are least as likely as not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for collapsed left lung are not met. 38 U.S.C. § 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 2. The criteria for service connection for collapsed right lung with thoracotomy are not met. 38 U.S.C. § 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 3. The criteria for service connection for swallowing/esophageal problems are not met. 38 U.S.C. § 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in June 1960 to September 1967, to include in the Republic of Vietnam, with subsequent Reserve service. Initially, the Board notes that the Veteran’s claims for service connection for collapsed right lung with thoracotomy, and for swallowing/esophageal problems were previously denied in a September 24, 2013 rating decision. Within one year, additional evidence, to include a positive nexus opinion authored by the Veteran’s private physician on September 4, 2014, was associated with the record. Pursuant to 38 C.F.R. § 3.156(b), when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. Therefore, as such evidence is new and material as to the service-connection claims for a collapsed right lung with thoracotomy, and for swallowing/esophageal problems, the Board finds that a threshold determination as to whether either claim must first be reopened is not necessary. Notably, the agency of original jurisdiction adjudicated both claims on their merits in an April 2016 statement of the case, and an August 2016 supplemental statement of the case. The Veteran testified before the undersigned at video conference hearing in March 2018. A transcript of the hearing has been associated with the claims file. In an October 2018 statement, the Veteran alluded to having balance/stability problems while walking, hypothyroidism, neuropathy, and a kidney condition, all of which he questioned whether they may be related to in-service herbicide exposure. If the Veteran wishes to file service-connection claims for these conditions, he may certainly do so, but is advised that a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1 (p), 3.155, 3.160 (2018). Service Connection Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2018). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2018); Allen v. Brown, 7 Vet. App. 439 (1995). 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 absent affirmative evidence to the contrary. 38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.307(a)(6)(iii) (2017). “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. 38 C.F.R. § 3.307(a)(6)(iii). Diseases entitled to the presumption under 38 C.F.R. § 3.309(e) include 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); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). See 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). 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, 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 41, 442-41, 449, and 61 Fed. Reg. 57, 586-57, 589 (1996). The United States Court of Appeals for the Federal Circuit has held, however, that a claimant is not precluded from establishing service connection with proof of actual causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A. Left and Right Lung with Thoracotomy The Veteran contends that his lung conditions are related to exposure to herbicides, namely, Agent Orange, during service. See December 2011 VA 21-526 Veterans Application for Compensation or Pension. The Board observes that the Veteran’s service treatment records demonstrate that he served within the borders of Vietnam during his period of service. He is therefore presumed to have been exposed to herbicides in service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(i) and (iii). The Board notes that although respiratory cancers (of the lung, bronchus, larynx, or trachea) are presumed to be related to in-service exposure to herbicide agents, the Veteran’s diagnosed lung disabilities are not listed disabilities for which presumptive service connection can be granted under 38 C.F.R. §3.307(a) and 3.309(e). Thus, service connection may not be granted on a presumptive basis based on herbicide exposure. As noted above, however, such does not preclude a finding that a direct relationship may exist. Upon review of the evidence of record as a whole, the Board concludes that, while the Veteran has a current diagnosis of recurrent pleural fibrosis of both lungs, and that he was presumed exposed to Agent Orange in service, the evidence weighs against finding that the Veteran’s lung diagnoses began during active service or are otherwise related to an in-service injury, event, or disease, to specifically include the presumed exposure to herbicides. 38 U.S.C. §§1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service treatment records do not show any complaints or diagnoses related to the Veteran’s lungs. A February 1967 annual flying examination reflected a normal clinical evaluation of the Veteran’s chest and lungs. On his August 1967 separation report of medical history, the Veteran denied any history of shortness of breath, asthma, or pain or pressure in his chest. He does not assert that his lung disabilities first manifested in service. Post-service private treatment records show that the Veteran diagnosed with right recurrent pleural effusion in July 2011 and left recurrent pleural effusion in June 2014. Private treatment notes reflect ongoing treatment for both lung conditions. In July 2011, the Veteran underwent a pleural biopsy due to the presence of a right-sided recurrent hemorrhagic pleural effusion. Findings showed a nodular fibrotic parietal and visceral pleura with entrapment of the right lower, middle and upper lobe. The Veteran also received a pleural tent for the right apical lobe since there were multiple areas of parenchymal air leaks and incomplete reexpansion. A November 2011 VA Agent Orange protocol examination diagnosed pulmonary fibrosis with fibrosing pleuritis. In June 2014, the Veteran underwent procedures on his left lung and received a diagnosis of recurrent left pleural effusion. In a September 2014 letter, the Veteran’s treating pulmonologist, Dr. R.E., opined that it was more likely than not that the Veteran’s recurrent exudative effusion was related to his Agent Orange exposure in Vietnam. Dr. R.E. did not provide a medical explanation or rationale in support of this conclusion. In his October 2015 Notice of Disagreement, the Veteran explained that Agent Orange had taken a different course in his lungs than in his fellow airmen. He said that he noticed he had shortness of breath four years earlier, and a CT scan revealed that his right lung was 95 percent filled with fluid causing his left lung to gradually expand to compensate, resulting in his heart and esophagus moving over. The Veteran later opined that he believed his lungs were “reacting” to the long-term, low-level effects of Agent Orange in his body. See October 2016 Congressional correspondence. The Veteran testified at a Board hearing in March 2018. He explained that he first noticed a lung issue in 2005 when he was having shortness of breath. He explained that first his right lung, then his left lung, collapsed, and that his esophageal problems resulted from having to compensate for the collapsed lungs. See Board transcript at p. 5-6. The Veteran’s doctor told him that the cause of his collapsed lungs was “indeterminant.” Id. at 8. VA obtained a supplemental medical opinion in July 2018, authored by a staff physician of pulmonary medicine at a VA medical center. Dr. J.F. stated that he reviewed the Veteran’s claims file. He noted that the Veteran began having symptoms of chronic dyspnea around 2005 and further evaluation revealed a left-sided pleural effusion. He then underwent an evaluation that included a left thoracotomy with biopsy, which showed fibrosing pleuritis without evidence of malignancy or infection. In 2014, the Veteran developed right-sided disease with pleural effusion and pleural fibrosis that was again evaluated with thoracotomy and biopsy. Dr. J.F. specifically noted that his review of the medical records showed no mention of connective tissue disease, or symptoms that clearly implicated that type of process. More, his review showed that there was no evidence of malignancy in the lung, pleura, or lymphoid systems. Based on the available data, Dr. J.F. opined that the most likely diagnosis was cryptogenic bilateral fibrosing pleuritis, a rare condition. He stated that, to his knowledge, there was no established association between herbicide exposure and fibrotic lung or pleural disease. He could find no clear evidence in the medical literature for any such association. Ultimately, Dr. J.F. concluded that he did not believe herbicide exposure was as likely as not the cause of the Veteran’s lung disease in this case. The Board finds the July 2018 opinion from Dr. J.F. to be the most probative in the resolution of the claim. Dr. J.F. noted a review of the medical records, opined as to a diagnosis, and concluded that a review of the medical literature did not support a finding that the Veteran’s lung disabilities were at least as likely as not due to exposure to herbicides. Dr. J.F.’s opinion was based on an accurate medical history and provided an explanation that contained clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his bilateral lung conditions to be related to his presumed Agent Orange exposure in service, and has submitted multiple lay statements to that effect, he is not competent to provide a nexus opinion in this case. The issue is also medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the detailed July 2018 VA opinion. Moreover, aside from his lay statements, the Veteran has not offered a probative medical opinion to support his contention. As noted above, he submitted an opinion from Dr. R.E. in September 2014 which noted the Veteran’s diagnosis of recurrent exudative effusion requiring surgery, with a conclusory statement that Dr. R.E. believed it more likely than not that such condition was related to the Veteran’s prior Agent Orange exposure during his service in Vietnam. Dr. R.E. did not support his conclusion with any rationale as to why, based on his medical knowledge or any relevant medical principles, he believed the Veteran’s lung disabilities to be related to Agent Orange. Accordingly, the Board affords Dr. R.E.’s opinion less probative weight than the more detailed opinion from Dr. J.F. Based on the foregoing, the Board finds that the preponderance of the evidence weighs against the claims of service connection for collapsed left lung and collapsed right lung with thoracotomy. The benefit of the doubt doctrine is therefore not for application, and the claims must be denied. B. Esophageal / Swallowing Problems The Veteran contends that he developed esophageal and swallowing problems as a result of movement of his esophagus following the collapse of, and treatment for his lungs. See April 2016 Form 9; March 2018 Board transcript at p. 7. Indeed, at his March 2018 Board hearing, the Veteran specifically noted that he did not experience any esophageal problems prior to his lung problems. Id. at 15. However, as the Veteran’s bilateral lung condition is found to not be service-connected, service connection for esophageal problems as secondary to the lung problems cannot be granted. 38 C.F.R. §3.310. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Polly Johnson, Associate Counsel