Citation Nr: 1808635 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 14-07 638 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to herbicide exposure (Agent Orange). 2. Entitlement to service connection for skin cancer to include as due to herbicide exposure (Agent Orange). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1952 to February 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2010 rating decision of the Cleveland, Ohio Regional Office (RO) of the Department of Veterans Affairs (VA). This case is now under the jurisdiction of the North Little Rock, Arkansas RO. In June 2014, the Veteran presented sworn testimony during a video-conference Board hearing in Little Rock, Arkansas, which was presided over by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. In August 2014, the Board remanded the matter to the AOJ for further evidentiary development, which included providing a VA examination regarding the Veteran's claim for service connection for COPD to include Agent Orange exposure and skin cancer to include as due to Agent Orange exposure. The Board is obligated by law to ensure that the AOJ complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the AOJ has substantially complied with the Board's remand directives as the Veteran was provided with a skin examination November 2017 and pulmonary examination with accompanying opinion in October 2017. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). FINDINGS OF FACT 1. The Veteran's COPD is not caused by or otherwise etiologically related to his military service, including his exposure to herbicides and hazardous chemicals while stationed in Vietnam. 2. Affording the Veteran the benefit of the doubt, it is at least as likely as not that his skin cancer is related to his active duty service. CONCLUSION OF LAW 1. The criteria for service connection for COPD are not met. 38 U.S.C §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for service connection for skin cancer are met. 38 U.S.C §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, and 38 C.F.R. § 3.159 (2017). With regard to the issue decided in the instant document, VA provided adequate notice in a letter sent to the Veteran in July 2010. Next, VA has a duty to assist the claimant in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. With regard to the issue decided in the instant document, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service and VA treatment records, as well as identified private treatment records. Also, VA afforded the Veteran relevant examinations and opinions in October 2017. The October 2017 opinion described the Veteran's COPD, reflected consideration of the relevant history, discussed the Veteran's theory of possible etiologies such as hazardous fumes and Agent Orange and provided adequate rationale for the conclusions reached. The Board finds the October 2017 opinion to be adequate. Additional explanation is appropriately found in the merits section of the instant document. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Also, with regard to the issue of COPD decided herein, the Board finds that the remand directives of the August 2014 remand have been substantially complied with. In that decision, the Board directed, in pertinent part, that an opinion be obtained that addressed the Veteran's claim for service connection for a COPD to include possible etiologies of hazardous work environment in service and Agent Orange. The medical opinion, obtained in October 2017, addressed all questions remanded regarding the Veteran's COPD claim. Thus, there has been compliance with the Board's August 2017 Remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C § 1110; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Furthermore, service connection can be established through application of statutory presumptions, to include those diseases associated with exposure to certain herbicide agents like Agent Orange. While the record indicates that the Veteran served in Vietnam during his active duty service, COPD has not been associated with exposure to herbicides for the purpose of presumptive service connection and it is not among the diseases listed in 38 C.F.R. § 3.309(e) (2017). Nonetheless, the Veteran is presumed to have been exposed to herbicides, including Agent Orange, while stationed in Vietnam. Thus, he is not precluded from showing that his military service caused his current disability on a direct basis because the Board must consider entitlement to service connection on alternative bases. See Combee, 34 F.3d at 1043. When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). (CONTINUED ON NEXT PAGE) Merits - COPD There is no dispute that the Veteran has a current disability of COPD, established in the October 2017 examination, and likewise he is presumed to have exposed to Agent Orange and the Board, for the sake of argument, concedes that the Veteran was exposed to hazardous fumes in service. The sole area of dispute is whether the Veteran's in-service exposures led to his current COPD, i.e. a nexus. In reviewing the evidence surrounding the issue of nexus, the Board notes that in support of the Veteran's position he has presented his own testimony that he believes that his COPD is related to his active service either through exposure to Agent Orange or other hazards unique to his Military Occupation Specialty. The Board notes that the Veteran has not presented any evidence of the relevant competencies to establish such a connection. Weighing against the Veteran's position, the VA examiner in October 2017, after review of the Veteran's testimony and the medical records, determined that there was no consistent medical literature which supports a relationship between Agent Orange and COPD and further explained that the lack of any incident of contemporaneous complaints following exposure to hazards in service makes any relationship to such exposures tenuous. Moreover, the VA examiner noted that the Veteran had an extensive 40 year history of smoking. He further explained, in sum, that it is well established that such an extensive history of smoking leads to COPD. In reviewing this evidence, the Board finds that the Veteran's COPD is not caused by or otherwise etiologically related to his military service, including his exposure to herbicides while stationed in Vietnam. In so finding, the Board has considered the Veteran's assertions. While the Veteran is competent to report symptoms that he perceived through his own senses, he is not competent to offer an opinion as to an etiology of his respiratory symptoms due to the medical complexity of the matter involved. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). COPD requires specialized training for a determination as to diagnosis, causation, and progression, and is therefore not susceptible to lay opinions on etiology or aggravation. Thus, the Veteran is not competent to render an opinion or attempt to present lay assertions to establish etiology of this disorder. Weighing against the Veteran's claim, the October 2017 opinion is the most competent and probative as to the relationship between the Veteran's current respiratory disorder and his active military service because of the examiners' expertise, training, education, proper support and explanations, thorough review of the pertinent records, and the Veteran's self-reported symptoms. The examiner determined that it was less likely than not that the Veteran's current COPD was caused or aggravated by the Veteran's active duty service, including his exposure to Agent Orange. The examiners cited to the Veteran's service treatment records and a lack of medical peer studies showing a relationship between Agent Orange or other exposures and the development of COPD to buttress the opinion. Thus, the third element of direct service connection is not met. The Board further notes that service connection based on tobacco use is generally precluded, thus, service connection on this theory is also not warranted. See 38 U.S.C. § 1103; 38 C.F.R. § 3.300 (a) (2017) (generally prohibiting service connection for death or disability due to an injury or disease attributable to the use of tobacco products by a veteran during active service). Because the probative evidence does not show a nexus between the Veteran's current COPD and his military service, the third element of service connection is not met. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. Merits - Skin Cancer The Veteran contends that his skin cancer symptoms began in service and have continued to this day. Upon review of the evidence, the Board finds that the Veteran's contentions are supported by the evidence and that service connection for skin cancer is warranted. There is no dispute on the Veteran's current disability. The Veteran's basal cell carcinoma of the face as documented in the October 2017 VA examination. Likewise, the Board notes that a February 1960 service treatment record documents that the Veteran had cyst removed from his face. The only issue in dispute is whether the Veteran's skin cancer is related to the February 1960 treatment in service. Regarding this issue, the Board notes that there is no evidence that any testing was done on the Veteran's cyst in service to determine whether it was cancerous. However, the Veteran's post-service VA treatment record indicated that he was found to have basal cell carcinoma located on his face post-service, in August 22, 1986. The VA examiner never addresses this favorable evidence in his October 2017 opinion, and thus, the Board finds that this opinion is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (Most of the probative value of a medical opinion comes from its reasoning and the Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion). Thus, the Board is left with an inadequate opinion and evidence that the Veteran had a cyst removed from his face twice in the same approximate area. Once in service with no evidence of testing for cancer and once post-service with testing which determined that the cyst was cancerous. The Board notes that this evidence of a cyst removal in service from the same area which later is found to be cancerous is highly probative to the Board. Thus, in weighing the evidence of cyst removal in service and later cancer diagnosis in the same area, the Board notes the timespan between the diagnosis of the Veteran's cyst removal in service and his skin cancer diagnosis following from this and given the fact there is no adequate negative opinion of record, the proximity of the post-service diagnosis to service. The Board finds that the issue of nexus is place in equipoise. See 38 C.F.R. § 3.303(a) (service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he served, his medical records, and all pertinet medical and lay evidence); see also Jandreau v. Nicholson, supra; and Buchanan v. Nicholson, supra. After having carefully reviewed the record, and weighing the evidence in support of and the total lack of evidence against the claim, the Board finds that the evidence is in relative equipoise as to whether the Veteran's skin cancer is related to his active service. Thus, resolving any doubt in the Veteran's favor, entitlement to service connection for skin cancer has been established, and the appeal is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. ORDER Entitlement to service connection for COPD is denied. Entitlement to service connection for skin cancer is granted. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs