Citation Nr: 18157281 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 10-06 052 DATE: December 12, 2018 ORDER Entitlement to service connection for a lung condition, to include as secondary to in-service herbicide agent exposure is denied. Entitlement to service connection for a back disability is denied. FINDINGS OF FACT 1. The competent evidence of record does not reflect that the Veteran has a lung condition, including as secondary to exposure to in-service herbicide agent, that was manifested in, caused by, or is otherwise etiologically related to his active service. 2. The competent evidence of record does not reflect that the Veteran has a back disability that was manifested in, caused by, or is otherwise etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a lung condition, secondary to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. The criteria to establish service connection for a back condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from December 1967 to September 1969 and November 1969 to May 1971. The Veteran served in the Republic of Vietnam and was awarded (among other decorations) the Purple Heart and the Vietnam Service Medal. This appeal arises before the Board of Veterans’ Appeals (Board) from a June 2008 rating decision wherein service connection for lung condition and back condition were both denied. This matter was also previously before the Board in September 2012, January 2014 and April 2016. In September 2012 and January 2014, the Board remanded both the lung and back issues. In April 2016, the Board denied the lung condition and remanded the back condition. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), which granted the parties’ Joint Motion for Partial Remand (JMPR) in November 2016. That motion found that the VA examination relied upon by the Board in its decision was inadequate, as the examiner erroneously concluded the Veteran did not have any in-service treatment for lung-related symptoms or conditions. In June 2017, the Board again remanded this issue in order that the Veteran could undergo a new VA examination. Service Connection The Veteran contends his lung condition and back disability should be service connected because of his active duty service in the Republic of Vietnam. The Veteran believes that his continued treatment for the claimed conditions after his separation from active service support his position that the lung condition and back condition should be service connected. The Veteran asserts that the rigors of military service and training caused his back condition. The Veteran also believes he is competent and credible in his lay assertions relating to the onset and ongoing back problems, therefore he is seeking service connection for his back. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent, credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of moderate restrictive ventilatory defect with or without cough and degenerative disk disease, the preponderance of the evidence is against finding that either condition began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). 1. Entitlement to service connection for lung condition, to include as secondary to herbicide exposure. The Veteran asserts that service connection is warranted for a lung condition, to include as secondary to herbicide exposure. The Veteran was treated for lung complaints, several bouts of malaria in 1969 while in-service, acute respiratory distress, and he was hospitalized from February 26, 1970 through March 3, 1970 for acute respiratory disease. The Veteran is currently diagnosed with moderate restrictive ventilatory defect with or without cough; the current disability criterion is met. Service treatment records show the Veteran was treated for acute respiratory disease from February 26, 1970 to March 3, 1970. Treatment records do not reflect any continued treatment beyond March 3, 1970 for this condition. The Veteran’s service treatment records also reflect the Veteran was treated for malaria three times. His records are otherwise negative for continued complaints or findings of any lung condition while in-service. The in-service incurrence criterion is met. The remaining question is whether the Veteran’s current disability is related to his active service. The only competent opinion regarding this question comes from a January 2018 VA opinion which found that it is less likely than not that the Veteran’s current disability had it onset in service or is otherwise related to his active service or to any in-service incident, injury, or exposure to herbicide agents. The examiner took into consideration the Veteran’s lay statements, medical history, malaria bouts, chest pain complaints, acute respiratory distress, and cough. The physician found that in reviewing current pharmacology literature and Physicians’ Desk Reference, there is a lack of sufficient clinical evidence to support lung pathology over thirty years after classic 1970s anti-malarial treatment. The VA physician also took into consideration the Veteran’s malaria events. The physician reported that all medical and hospital notes lacked any subjective complaints and or clinical evidence to support the current diagnosis of restrictive ventilatory pulmonary condition during the presumptive period following separation. The physician noted the thirty-seven year gap following separation before the November 2008 diagnosis of moderate restrictive ventilatory defect with or without cough. The physician reviewed the in-service treatments and outcomes, clinical evidence, medical literature, medical records, and lay statements. As a result, the physician noted that it remains less likely than not that the Veteran’s claimed lung condition related to or was aggravated by military service or had its onset in service or is otherwise related to service. This opinion is consistent with the Veteran’s post-service medical history. Notably, records after service specifically note in 1977, 1978, and 1979 that chest x-rays were negative with no fluid on the lungs and his lungs were noted to be within normal levels and clear. The Veteran’s medical records also state in 2005 and 2006 that his lungs were clear. In October 2007 he was diagnosed with bronchitis. Records in 2009 reflect lungs were clear. In July 2010, the Veteran was seen for chest pain and received a single chest portable exam. The impression notes stated that the hyperexpansion of the lungs suggests possible chronic lung disease. However, in 2012, his medical records state his lungs were clear. In his June 2017 chest films, his lungs and pleural spaces were clear and the impression was consistent with no evidence of acute cardiopulmonary disease. All of these records are consistent with the opinion from January 2018 and serve to further underpin the conclusions made therein. To the extent the Veteran contends that his claimed condition is related to herbicide agent exposure, the Board notes that his diagnosed disability of lung condition is not among those for which service connection may be granted on a presumptive basis. See 38 C.F.R. 3.309. With regard to direct service connection as a result of herbicide agent exposure, again there is no competent evidence that supporting the Veteran’s contention. Turning again to the January 2018 opinion, the examiner stated that it was less likely than not that the Veteran’s claimed lung condition is presumptively service connected and or related to, caused and or was aggravated by exposure to herbicides agents. The examiner noted that medical literature and studies do not show a link between the Veteran’s particular respiratory disorder and exposure to herbicide agents. There is no contrary opinion of record. The only evidence in support of the Veteran’s contention that his current disability is related to his active service comes from the Veteran himself. However, while the Veteran is competent to report his symptoms and experiences in service, determining the etiology of a lung disability such as the Veteran’s here is complex and requires medical knowledge or training. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. The Veteran’s contentions therefore cannot be considered competent evidence in support of his claim. In sum, the competent evidence does not support a nexus between Veteran’s active service to include the claimed lung condition. The most probative evidence is against a finding that the Veteran’s lung condition is related to service. Accordingly, the preponderance of the evidence is against the claim and service connection is denied. 2. Entitlement to service connection for a back disability The Veteran contends that service connection is warranted for a back disability. He contends his back disability arises from his active duty service in Vietnam. The Veteran contends that his military occupational specialty and the rigors of combat and physical training led to his current back condition. The Veteran is currently diagnosed with degenerative disc disease; the current disability criterion is met. The Veteran’s service treatment records are silent for any specific complaints of or treatment for a back injury or disability during his service. The Veteran contends his back condition is due to his exposure to the rigors of combat in Vietnam and physical training in the military. Regarding the in-service combat presumption, if an injury or disease was alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, if consistent with the circumstances, conditions, or hardships of service, even if there is no official record of the incident. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). As the Veteran was awarded the Purple Heart, he is considered to be a combat veteran for VA purposes, and his statements regarding the rigors of combat are accepted. That said, the provisions of 38 U.S.C. § 1154(b) do not establish a presumption of service connection; rather, they ease the combat veteran’s burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. See Caluza v. Brown, 7 Vet. App. 498 (1995). That is, the statute provides a basis for determining whether an injury was incurred in service, but not a basis to link the injury etiologically to the current condition. Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007); Cohen v. Brown, 10 Vet. App. 128, 138. Thus, while the Board accepts the Veteran’s contentions regarding the circumstances of his service, it must still be shown by competent evidence that his current disability is related to his active service. No such competent evidence exists here. Weighing against the Veteran’s claim is a January 2018 opinion of a VA examiner. The examiner determined that it is less likely than not that the Veteran’s current back disability was related to his active service, to include his combat experience. The examiner noted that the Veteran was not seen for back complaints until 2008, some 37 years after his separation. At that time, he complained of back pain and a compression fracture of one week’s duration. The examiner noted that the Veteran worked in a physically demanding job that required labor with twisting, bending, and lifting. She determined that the Veteran’s initial 2008 injury and treatment were related to and aggravated by his post-service occupation and not to his in-service history of combat and rigorous physical training. As above, the only evidence in support of the Veteran’s claim is his contentions themselves. And as above, determining the etiology of degenerative disc disease is complex, requiring medical knowledge or training. The Veteran’s statements regarding his disability are therefore not considered competent evidence in support of the nexus criterion. Further, to the extent that the Veteran contends his claimed condition is related to a combat presumption, as explained above, that presumption lessens the burden to show an in-service incurrence, but it does not eliminate the nexus requirement. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). The Veteran must show that the disability he incurred in service was a chronic condition that persisted in the years following his active duty. Reeves v. Shinseki, 682 F. 3d 988, 998-99 (2012). In this case, Veteran did not provide any additional information, lay or medical, and there is no medical nexus linking his diagnosis to his active duty service. (Continued on next page) In sum, the competent evidence does not support a nexus between Veteran’s active service to include the claimed back condition. The most probative evidence is against a finding that the Veteran’s back condition is related to service. Accordingly, the preponderance of the evidence is against the claim and service connection is denied. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Mouzakis, Associate Counsel