Citation Nr: 18157339 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 15-14 199A DATE: December 12, 2018 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to exposure to herbicides, asbestos, and/or jet and exhaust fumes, based upon substitution of the appellant as claimant, is denied. Entitlement to service connection for hypertension with secondary cerebrovascular accident residuals, based upon substitution of the appellant as claimant, is denied. REMANDED Entitlement to nonservice-connected pension, based upon substitution of the appellant is claimant, is remanded. FINDINGS OF FACT 1. COPD did not manifest in service and is not related to service, to include alleged exposure to environmental hazards therein. 2. Hypertension with secondary stroke residuals did not manifest in service or for many years thereafter and is not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD, to include as due to exposure to herbicides, asbestos, and/or jet and exhaust fumes, based upon substitution of the appellant as claimant, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for hypertension with secondary cerebrovascular accident residuals, based upon substitution of the appellant as claimant, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1971 to April 1975. He died in April 2016. The appellant is his surviving spouse and substitute claimant in this case. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied entitlement to nonservice-connected pension, as well as a March 2011 rating decision of the VA RO in St. Petersburg, Florida, which denied entitlement to service connection for hypertension with secondary stroke residuals and COPD. In May 2018, the RO recognized the appellant as the substitute-claimant in the Veteran's appeal. While the appellant was scheduled for the requested Board hearing in November 2018, she subsequently cancelled her hearing. The Board will accordingly proceed with a decision in this matter. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To show a chronic disease in service, a combination of manifestations sufficient to identify the disease entity is required, as is sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). The Court of Appeals for Veterans Claims (Court) has established that 38 C.F.R. § 3.303(b) applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 U.S.C. § 1101. With respect to the current appeal, that list includes cardiovascular-renal disease and other organic disease of the nervous system. See 38 C.F.R. § 3.309(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including cardiovascular-renal disease are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). However, in order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable (10 percent) degree within one year of separation from service. See 38 C.F.R. § 3.307. During his lifetime, the Veteran was not afforded a VA examination with respect to his claim of service connection for COPD and hypertension for opinion as to whether such disability is related to service. For the reasons explained in greater detail herein below, no such examination was required because the evidence does not suggest that the claimed disabilities, or symptoms thereof, had their onset in service or may be associated with the Veteran's service. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, remand for opinion on the etiology of these claimed conditions is not warranted. Finally, Veterans who, during active 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 to an herbicide agent, unless there is affirmative evidence of non-exposure. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active service, certain enumerated diseases, including ischemic heart disease, shall be presumptively service-connected even where there is no record of such disease during service, provided that the disease is manifested to a compensable degree as set forth in 38 C.F.R. § 3.307, and the rebuttable presumption provisions of 38 C.F.R. § 3.307 are met. See 38 C.F.R. § 3.309(e); see also 38 C.F.R. § 3.307(a)(6)(ii) (providing that with the exception of chloracne or other acneform disease, porphyria cutanea tarda, and early onset peripheral neuropathy, the diseases listed in 38 C.F.R. § 3.309(e) must be manifest to a degree of 10 percent or more at any time after service). In this case, service personnel records do not reflect that the Veteran served in Vietnam. Moreover, the Veteran did not contend that he served in Vietnam. Therefore, he is not presumed to have been exposed to herbicides, and namely Agent Orange, in service. Rather, the Veteran alleged that he was exposed to Agent Orange while stationed in Hawaii with the Air Force in that he was exposed to aircraft returning from Vietnam that the residue of Agent Orange. He also alleged that the base was a possible storage location of Agent Orange. However, even if the Board were to assume that the Veteran was exposed to Agent Orange in service, COPD is not among the diseases listed in 38 C.F.R. § 3.309(e). Accordingly, service connection on a presumptive basis is not warranted. However, the regulations governing presumptive service connection for herbicide exposure do not preclude a veteran from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (1994). The Board will adjudicate the claim on a theory of direct entitlement to service connection. 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to exposure to herbicides, asbestos, and/or jet and exhaust fumes During his lifetime, the Veteran contended that his COPD was related to in-service exposure to various environmental hazards, including herbicides, asbestos, and jet/exhaust fumes. The Veteran’s service treatment records include no complaint, finding, or diagnosis with respect to a respiratory disorder or the claimed COPD. No related abnormalities were found on December 1974 discharge examination. Following service, various private treatment records reflect diagnosis and treatment of COPD. A February 1998 discharge summary from the University Hospital at Plainview reflects a past medical history of COPD, and notes that the Veteran was a smoker who had recently quit. A March 2006 report from the Lake Wales Medical Center reflects a past medical history of COPD. He was treated for exacerbation of COPD at that time. A pulmonary rehabilitation report dated in August 2010 reflect diagnosis of COPD. These records include no discussion of relationship of COPD to service, to include any alleged exposure to herbicides, asbestos, or jet engine fuel/fumes. The appellant wrote in a February 2011 statement that the Veteran suffered from bouts of bronchitis when she first met him in 1990, and was later diagnosed with COPD. In this case, this first evidence of the claimed COPD was in 1998, over 20 years after discharge form service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and any medical complaints or documentation of a claimed disability is a factor that may weigh against a claim for service connection). See 38 C.F.R. § 3.303(b). Moreover, none of the probative evidence supports a finding of a relationship between the Veteran’s COPD and service. To the extent that the Veteran and his wife advanced their interpretation of his medical condition indicating that COPD was related to service, including exposure to Agent Orange, jet engine fuel or asbestos, the Board acknowledges that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board’s categorical statement that “a valid medical opinion” was required to establish nexus, and that a layperson was “not competent” to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). The probative value of these general assertions in this regard is outweighed by the evidence outlined above documenting the onset of COPD disability many years after service with no suggestion that such disability has been caused and/or aggravated by an in-service event. Accordingly, the claim for service connection for COPD, based upon substitution of the appellant as claimant, must be denied. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). 2. Entitlement to service connection for hypertension with secondary cerebrovascular accident residuals The Veteran’s service treatment records include no complaint, finding, or diagnosis with respect to the claimed hypertension or stroke. Blood pressure was 120/74 on December 1974 discharge examination, and no related cardiovascular abnormalities were noted. Post-service private treatment records from various providers reflect assessment of hypertension. A private treatment record dated in November 1990 notes history of hypertension. In August 2005, the Veteran completed an outpatient history record, which reflects his notation of high blood pressure, with onset 15 years prior. In July 2005, the Veteran presented with neurologic symptoms and was diagnosed with stroke and accelerated hypertension. Continued treatment records reflect assessment and treatment of hypertension and stroke residuals. In a March 2011 statement, the Veteran expressed his belief that his high blood pressure began in service due to dealing with anxiety in service. However, in this case, the first evidence of the claimed hypertension was in 1990, approximately 15 years after discharge form service. See Maxson, 230 F.3d at 1333. Moreover, none of the probative evidence supports a finding of a relationship between the Veteran's hypertension and service. Likewise, there is no credible evidence that the disability first manifest in service or within one year of service. Despite the Veteran’s report of earlier onset of high blood pressure related to anxiety in service, VA and private treatment records do not disclose earlier diagnosis of hypertension and there is otherwise no other indication of onset of hypertension within one year of discharge from service. To the extent that the Veteran advanced his own interpretation of his medical condition indicating that his hypertension is related to service, the Board acknowledges that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson, 581 F.3d at 1316. In any event, the probative value of these general assertions in this regard is outweighed by the evidence outlined above documenting the onset of hypertension disability many years after service with no suggestion that such disability has been caused and/or aggravated by an in-service event. Thus, based upon the cumulative record, the Board concludes that hypertension first manifest years post service and that there is no nexus to service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. Accordingly, the claim for service connection for hypertension, based upon substitution of the appellant as claimant, must be denied. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Fagan, 573 F.3d at 1287 (Fed. Cir. 2009). REMAND Although the Board regrets the delay, upon review of the claims file, the Board finds that additional development on the remaining claim on appeal is warranted. Entitlement to service connection for nonservice-connected pension is remanded. A veteran who meets the wartime service requirements will be paid the maximum rate of pension, reduced by the amount of his countable income. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.23, 3.273. Payments of any kind from any source, including Social Security Administration (SSA) benefits, shall be counted as income during the 12- month annualization period in which received, unless specifically excluded. 38 C.F.R. § 3.271. The types of exclusions from income for VA pension purposes include certain unreimbursed medical expenses in excess of five percent of the maximum annual pension rate (MAPR) that have been paid within the 12-month annualization period. 38 U.S.C. § 1503(a); 38 C.F.R. § 3.272. For the purpose of determining initial entitlement, the monthly rate of pension shall be computed by reducing the applicable maximum pension rate by the countable income on the effective date of entitlement and dividing the remainder by 12. 38 C.F.R. § 3.273(a). Nonrecurring income (income received on a one-time basis) will be counted, for pension purposes, for a full 12-month annualization period following receipt of the income. 38 C.F.R. § 3.271(c). Basic entitlement to such pension exists if, among other things, the appellant's income is not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. 38 U.S.C.§ 1521(a), (b); 38 C.F.R. § 3.3(a)(3). The MAPR is published on the VA benefits website and is to be given the same force and effect as published in VA regulations. 38 C.F.R. § 3.21; See also http://www.benefits.va.gov/PENSION/current_rates_veteran_pen.asp. Also, a higher rate of pension is available for a Veteran who is housebound and an even higher rate of pension is available for a Veteran who is in need of regular aid and attendance. 38 U.S.C. § 1541(d)(1); 38 C.F.R. § 3.23(d)(2). A person is considered permanently housebound if he or she is substantially confined to the home by reason of disabilities that are reasonably certain to remain throughout the lifetime. 38 U.S.C. § 1541(e). 38 U.S.C. § 1502(c); 38 C.F.R. § 3.351(f). Prior to his death, Agency of Original Jurisdiction (AOJ) determined that the Veteran was ineligible to receive nonservice-connected pension benefits on the basis that his countable income exceeded the maximum annual pension rate for a Veteran in need of regular aid and attendance with dependent spouse. At that time, the AOJ considered Social Security income, as well as the appellant’s unemployment benefits. The AOJ noted that while the Veteran indicated that his wife’s unemployment benefit had ended in February 2011, there was no official documentation regarding termination of this benefit. Moreover, the Veteran had not provided any information on medical expenses since his date of claim in November 2010. Given the foregoing, the Board believes that the appellant should be provided an additional opportunity to provide greater detail on the Veteran’s medical expenses and income for the period on appeal in order to determine eligibility for nonservice-connected pension. The matter is REMANDED for the following action: 1. Provide the appellant with a VA Form 21-8416, Medical Expense Report, and ask her to report medical expenses for the years from November 2010 until the Veteran’s death. 2. Request the appellant to submit a VA Form 21-0516-1, Improved Pension Eligibility Verification Report, including income from all sources and deductions from countable income such as certain unreimbursed medical expenses, for each year from 2010 until the Veteran’s death, for which he sought VA nonservice-connected pension benefits. The appellant should be specifically instructed that the only medical expenses that should be included are ones that have been paid by the Veteran and not reimbursed. In addition, the appellant should clarify if, and when, she stopped receiving unemployment benefits. 3. The AOJ is asked to obtain the SSA payment amounts relevant to the period on appeal. (Continued on the next page)   4. After completing any additional notification or development deemed necessary, the AOJ should readjudicate the appellant’s claim. If the benefit sought on appeal is not granted, the appellant should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel