Citation Nr: 18159615 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 16-46 788 DATE: December 19, 2018 ORDER Service connection for a respiratory disorder is denied. REMANDED Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents, is remanded. FINDING OF FACT At no time during the pendency of the claim does the Veteran have a current disability of a respiratory disorder, and the record does not contain a recent diagnosis of disability prior to the Veteran’s filing of a claim. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder have not been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1960 to June 1963. This matter comes before the Board of Veterans Appeals (Board) on appeal from rating decisions issued in June 2016 and January 2017 by Department of Veterans Affairs (VA) Regional Offices (RO). In March 2018 and May 2018, the Board remanded the Veteran’s claims for service connection for a respiratory disorder and hypertension, respective, for additional development. The case now returns for further appellate review. 1. Entitlement to service connection for a respiratory disorder, to include as due to presumed exposure to herbicide agents. The Veteran contends that he has a current respiratory disorder related to in-service exposure to herbicide agents. Therefore, he claims that service connection for such disorder is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability”). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Additionally, the law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents, and that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service. For purposes of the presumption, “herbicide agents” are 2,4-D, 2,4,5-T, and its contaminant TCDD, cacodylic acid, and picloram. 38 C.F.R. § 3.307(a)(6)(i). Veterans 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, or in or near the Korean DMZ between April 1, 1968, and August 31, 1971, are presumed to have been exposed to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). This presumption also extends to individuals who performed service in the Air Force or Air Force Reserve under circumstances which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. Id. As the record reflects that the Veteran served in Vietnam from January 1962 to November 1962, he is presumed to have been exposed to herbicide agents. For those veterans who have been exposed to herbicide agents, certain diseases are acknowledged to be presumptively related to such exposure. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). Notwithstanding the foregoing presumption, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Upon a review of the record, the Board finds that service connection for the Veteran’s claimed respiratory disorder is not warranted since he does not have a current disability at any point pertinent to the pendency of his January 2016 claim. In this regard, the Board acknowledges that, prior to the filing of his claim in January 2016, private treatment records reflect that the Veteran was treated most recently for acute bronchitis in March 2013, and noted to have a diagnosis of chronic obstructive pulmonary disease (COPD) as recently as April 2014. Further, while he was referred to the pulmonary clinic in July 2013 for a benign chronic cough that could have been from reflux or asthma, no definitive diagnosis was made. Additionally, as pertinent to COPD, the records do not show what data, to include diagnostic testing, was utilized in rendering such diagnosis. Moreover, following an interview with the Veteran, a review of the record, and a physical examination, an April 2018 VA examiner found that the Veteran did not have a respiratory disorder at any point proximate to his January 2016 claim, to include COPD, acute bronchitis, and asthma. In this regard, she noted the aforementioned treatment for bronchitis in March 2013, the notation of possible asthma in July 2013, the diagnosis of COPD in April 2014, and a February 2017 letter indicating COPD with spirometry showing moderate restriction. However, the examiner noted that the Veteran had normal pulmonary function testing, physical examination, and imaging. As such, she found that he had no pulmonary disorder. As pertinent to the aforementioned diagnoses, the examiner noted that acute bronchitis is an acute illness like an upper respiratory infection. It is not chronic. Further, she observed that the Veteran had only a single visit with a pulmonary physician who gave a differential diagnosis for his cough, did not make a definitive diagnosis, and there was no follow up or testing except for a normal chest X-ray. Further, the Veteran had no shortness of breath or lung issue. The examiner also found that the diagnosis of COPD was erroneous and not based on any evidence. Specifically, she observed that the Veteran’s physician’s report of COPD with moderate restriction on spirometry made no sense. In this regard, restriction is not obstruction, and restriction can only be diagnosed with lung volumes, which were performed at the VA examination and were normal. The examiner made it clear that the Veteran did not have restriction or obstruction, and had no response to bronchodilators. Furthermore, she found that the Veteran’s reported symptomatology, which included a cough, did not impact his ability to work. The Board affords great probative weight to the April 2018 VA examiner’s opinion as she considered all of the pertinent evidence of record, to include the Veteran’s lay statements and the medical records reflecting potentially diagnosed respiratory disorders, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Specifically, she described her thorough review of the Veteran’s medical records, as well as her own examination and respiratory function testing, and offered a detailed explanation for her conclusion that the Veteran does not have a current respiratory disability. With regard to the notation of acute bronchitis in March 2013, the Board finds that such disorder resolved well prior to the filing of the Veteran’s January 2016 claim. See Romanowsky, supra. Furthermore, no definitive respiratory diagnosis was rendered in connection with the Veteran’s complaints of a cough in July 2013, and the April 2014/February 2017 diagnoses of COPD with spirometry showing moderate restriction are not supported by objective testing. Rather, as discussed by the April 2018 VA examiner, the Veteran’s pulmonary function testing, physical examination, and imaging were all normal. Consequently, as such diagnosis is unsupported by the objective testing necessary to diagnose such disability, the Board affords it no probative weight. The Board acknowledges the Veteran’s assertions that he experiences a cough and recognizes that he is competent to report symptoms he experiences or witnesses. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). The Board further notes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In the instant case, while the Veteran is competent to report the symptoms he experiences or witnesses, he is not competent to relate such symptoms to a specific disability such as bronchitis, asthma, or COPD as he has not been shown to have the medical training necessary to do so. In this case, the clinical evidence does not demonstrate a competent diagnosis of a disability of a respiratory disorder at any time prior to or during the pendency of the appeal. In fact, while the April 2018 VA examiner specifically consider the Veteran’s reported symptoms as well as the diagnosis reported in his private treatment records, she did not find evidence of a respiratory disability. Furthermore, the record does not show, and the Veteran has not alleged, functional impairment of earning capacity as a result of his reported symptoms. Based on the foregoing, the Board finds at no time during the pendency of the claim does the Veteran have a current disability of a respiratory disorder, and the record does not contain a recent diagnosis of disability prior to the Veteran’s filing of a claim. Consequently, service connection for such disability is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim for entitlement to service connection for a respiratory disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 8 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 2. Entitlement to service connection for hypertension, to include as due to presumed exposure to herbicide agents. The Veteran asserts that his hypertension is related to his acknowledged in-service exposure to herbicide agents. In support of such claim, he submitted medical articles which theorize a relationship between hypertension and such exposure. Consequently, the Board remanded the claim in order to afford him a VA examination so as to determine the nature and etiology of his hypertension. In May 2018, a VA examiner interviewed the Veteran, reviewed the record, and conducted a physical examination, and diagnosed hypertension. She then opined that such was less likely than not incurred in or caused by the Veteran’s military service, to include his acknowledged in-service exposure to herbicide agents. In support of such opinion, the examiner noted that the Veteran’s hypertension could be etiology of many risk factors, such as his history of a former smoker, mixed hyperlipidemia, and obesity. She further observed that the medical literature stemming from a November 2016 study revealed a higher prevalence of hypertension in veterans who were exposed to herbicides, which supported the scientific evidence linking herbicide exposure with hypertension. However, the examiner then noted that hypertension is not a disease recognized by VA as being caused by exposure to herbicide agents/Agent Orange. However, the National Academy of Science (NAS) Institute of Medicine recently upgraded hypertension from its previous classification in the category of “limited or suggestive” evidence of an association with exposure to Agent Orange to the category of “sufficient” evidence of an association in Update 11 (2018). According to NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. Consequently, the Board finds that a remand is necessary in order to obtain an addendum opinion as to whether the Veteran’s hypertension is related to his acknowledged in-service exposure to herbicide agents that does not rely exclusively on the fact that such has not been acknowledged by regulation to be presumptively related to such exposure. The matter is REMANDED for the following action: Return the record to the VA examiner who completed the May 2018 opinion for an addendum opinion. The record and a copy of this Remand must be made available to, and reviewed by, the examiner. If the May 2018 VA examiner is not available, the record should be provided to an appropriate examiner to render the requested opinion. The need for an additional examination of the appellant is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e. a probability of 50 percent or greater) that the Veteran’s hypertension is related to his presumed in-service exposure to herbicide agents. In offering such opinion, the examiner should consider NAS Institute of Medicine’s Veterans and Agent Orange: Update 11 (2018) that upgraded hypertension from its previous classification in the category of “limited or suggestive” evidence of an association with exposure to Agent Orange to the category of “sufficient” evidence of an association. According to NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. The examiner is advised that the sole basis of a negative opinion cannot be that hypertension is not on the list of diseases subject to presumptive service connection based on exposure to herbicide agents. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Gardner Gaye, Associate Counsel