Citation Nr: 18139888 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 15-18 920A DATE: October 1, 2018 ORDER Service connection for chronic obstructive pulmonary disease is denied. REMANDED Service connection for obstructive sleep apnea, to include as secondary to service-connected disease or injury, is remanded. Service connection for cirrhosis of the liver, to include as secondary to service-connected disease or injury, is remanded. Entitlement to an increased rating for post-traumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), is remanded. Service connection for hepatitis C is remanded. FINDING OF FACT Chronic obstructive pulmonary disease was not manifest during service and is not attributable to service. Chronic obstructive pulmonary disease is not related (causation or aggravation) to a service-connected disease or injury. CONCLUSION OF LAW Chronic obstructive pulmonary disease was not incurred in or aggravated by active service and is not proximately due to or a result of, or aggravated by, a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from October 1970 to July 1972, including service in the Republic of Vietnam from May 1971 to April 1972. Service Connection Service connection is awarded for disability that is the result of a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability that are subject to lay observation. 38 U.S.C. § 1153(a) (2012); 38 C.F.R. § 3.303(a) (2017); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Chronic Obstructive Pulmonary Disease VA regulations provide that, if a Veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for certain disorders: Chronic obstructive pulmonary disease is not listed among the diseases presumed to be associated with Agent Orange exposure. 38 C.F.R. § 3.309(e). Specifically, the VA Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for respiratory disorders. It was indicated that the National Academy of Sciences, after reviewing pertinent studies, did not feel that the evidence warranted altering its prior determination that there was inadequate or insufficient evidence to determine an association between exposure to herbicides and non-malignant acute or chronic respiratory disorders. See Notice, 72 Fed. Reg. 32395-32407 (2007). See also “Summary.” National Academies of Science, Engineering, and Medicine. 2016. Veterans and Agent Orange: Update 2014. Washington, DC: The National Academies Press. doi: 10.17226/21845. Thus, notwithstanding the fact that the Veteran served in Vietnam during the Vietnam era and is presumed to have had Agent Orange exposure, service connection on a presumptive basis as due to Agent Orange exposure is not warranted for chronic obstructive pulmonary disease. The Board notes, however, that even when the Secretary determines that a disability should not be added to the list of presumptive conditions, a claimant may still establish that service connection is warranted by showing that the claimed disability is at least as likely as not causally linked to herbicide exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). Clinical evaluation of the Veteran’s lungs and chest was normal at the time of his entry examination in active service in October 1970; chest X-ray was negative. Service treatment records show notations of chest pain in November 1970 and in December 1970. Clinical evaluation of the Veteran’s lungs and chest were abnormal at the time of his separation examination in July 1972; the examiner then noted occasional wheeze, smoking. No defect or diagnosis was indicated. Private records, dated in April 2009, reveal the Veteran’s report of being told that he had chronic obstructive pulmonary disease when he suffered a bout of chronic persistent bronchitis from October 2008 through March 2009. The Veteran then quit smoking. His previous tobacco use was greater than 40-pack years. X-rays taken in June 2010 revealed no active cardiopulmonary disease. A July 2013 VA examination report reveals a diagnosis of chronic obstructive pulmonary disease from the late 1990’s, and a medical history of breathing problems for many years. The Veteran required daily use of inhaled medications. Pertinent physical findings included full breath sounds but expiratory prolongation, and both inspiratory and expiratory wheezes with deeper breaths. Following examination, the July 2013 examiner opined that it is less likely than not that the Veteran’s chronic obstructive pulmonary disease is related to or occurred incident to active service. In support of the opinion, the examiner noted that service treatment records include a single mention of “occasional wheeze, smoking;” and the Veteran’s own reported history denied breathing symptoms. There were no medical visits for care of any respiratory symptoms in service, and there is not an adequate nexus of facts to establish chronic obstructive pulmonary disease or any permanent lung condition. The examiner added that wheezing can occur transiently from simple cold or viral infections or allergies. Service connection is expressly precluded for any disability related to chronic tobacco use (for claims received after June 9, 1998, as here). See 38 U.S.C. § 1103 (2012); 38 C.F.R. § 3.300 (2017). However, VA’s General Counsel has held that neither 38 U.S.C. § 1103(a), which prohibits service connection of a disability or death on the basis that it resulted from injury or disease attributable to the use of tobacco products by the Veteran during service, nor VA’s implementing regulations at 38 C.F.R. § 3.300, bar a finding of secondary service connection for a disability related to the Veteran’s use of tobacco products after the Veteran’s service, where that disability is proximately due to a service-connected disability that is not service-connected on the basis of being attributable to the Veteran’s use of tobacco products during active service. VAOPGCPREC 6-2003 (Oct. 28, 2003). In this case, the evidence is against a finding that chronic obstructive pulmonary disease was incurred in active service. Service treatment records establish that chronic obstructive pulmonary disease was not “noted” at any time during active service, and that chronic obstructive pulmonary disease was identified long after service. Clearly, the Veteran did not have characteristic manifestations sufficient to identify the disease entity during service or within one year. Rather, his chest X-ray was normal at separation. The Board also finds credible the July 2013 examination report and medical opinion, which are afforded significant probative value because they are based on a review of the Veteran’s medical history and are supported by the evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Here, the Veteran is competent to testify as to symptoms he has experienced that are capable of lay observation, such as daily wheezing. However, the lay evidence must be compared with the medical evidence, which has not attributed chronic obstructive pulmonary disease to any in-service disease or injury, to include exposure to herbicides or chest pain. The Board finds the medical evidence to be far more probative and more credible than the lay evidence. To the extent that there is daily wheezing, (regardless of diagnosis) it has not been associated with disease or injury in active service. Rather, the chest X-ray was normal at separation and the first identification of respiratory pathology was many years after service. Lastly, a VA examiner in July 2013 opined that the Veteran’s obstructive sleep apnea was not a symptom of chronic obstructive pulmonary disease; and that obstructive sleep apnea was unrelated to chronic obstructive pulmonary disease. The Board notes that service connection has not been awarded, to date, for obstructive sleep apnea. In this case, the evidence does not reflect that the Veteran’s chronic obstructive pulmonary disease is “part and parcel” of, or proximately due to or aggravated by, any service-connected disease or injury. Accordingly, secondary service connection for chronic obstructive pulmonary disease is not warranted. For reasons and bases set forth above, the Board concludes that the evidence weighs against granting service connection for chronic obstructive pulmonary disease. On this matter, the preponderance of the evidence is against the claim; the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Records The Veteran has indicated that he participated in an at-home sleep study conducted by “NovaSom” in January 2015, and has been diagnosed with mild obstructive sleep apnea and fitted for use of a CPAP machine. The RO or VA’s Appeals Management Office (AMO) should specifically seek the Veteran’s authorization for release of treatment records pertaining to his sleep study. In June 2013, the Veteran stated that he had received treatment for PTSD at a Vet Center in Springfield, Illinois. The RO or AMO should specifically seek the Veteran’s authorization for release of these treatment records. VA is obliged to assist a Veteran to obtain evidence pertinent to his claims. See 38 U.S.C. § 5103A (2012).   Hepatitis C Post-service records first reveal that laboratory tests were positive, though perhaps not conclusive, for hepatitis C in October 2002. Renal function studies were positive for hepatitis C in April 2009. A November 2011 VA examination report reflects a medical history of hepatitis C directly related to use of heroin in Vietnam. The Veteran reported being treated for liver problems, secondary to substance abuse, less than one year after his separation from active service; and that he was hospitalized for a week. The Veteran reported that he abused heroin in Vietnam because he was “super stressed.” After returning from Vietnam, the Veteran reportedly “came down” from heroin on his own by spending three days “in a bathtub in a hotel.” The Veteran reported that his commanding officers threatened to pull his security clearance, unless he “cooperated” with them regarding the extent of substance abuse in his unit in Vietnam. The July 2011 examiner found that the Veteran met the criteria for a diagnosis of PTSD based on his experiences in Vietnam. In January 2012, the Veteran reported that he shared needles for heroin use with other Veterans in Vietnam; and that stress had caused him to act—out of mental anguish in doing that—when normally he would not. Private records, dated in June 2012, show an impression of hepatitis C diagnosed in 2002, which was probably contracted in Vietnam and never treated. Records show that the Veteran was referred to infectious disease, although he declined treatment. In June 2013, the Veteran again reported that it was his service-connected PTSD which caused him to do intravenous drugs when he feared that he and his unit were going to face imminent death or danger; and, as a result, he contracted hepatitis C. Although hepatitis C had not been discovered and given a name until much later, the Veteran reportedly suffered with the symptoms and effects; and reported that his stress, resulting from PTSD, had caused the hepatitis C to worsen and resulted in a disabling situation. A July 2013 VA examination report reflects that the Veteran is retired medically due to hepatitis C. Here, the Veteran’s only known risk factor for hepatitis C in active service was intervenous drug use. It is not in dispute that the Veteran has hepatitis C; such diagnosis is shown in VA treatment records. His service in Vietnam has been verified; and, in granting his claim of service connection for PTSD, VA conceded that the Veteran had been exposed to stressful events during such service. Moreover, his service personnel records show participation in an unnamed campaign (15th) in Vietnam. The Board finds the Veteran’s statements to be credible and consistent with the circumstances, conditions, and hardships of service as a participant in a wartime campaign in Vietnam. 38 C.F.R. § 3.303. What remains necessary to establish service connection for hepatitis C is competent evidence of a relationship between his current hepatitis C and service-connected disease or injury. Those are matters that require medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Obstructive Sleep Apnea The evidence of record reveals that the Veteran has a history of sleep apnea, for which he utilizes a CPAP machine. Private records, dated in April 2009, show that the Veteran’s obstructive sleep apnea was probably position or REM dependent. In October 2017, a private physician referenced a study in a medical journal which indicated that Veterans with psychological impairments—such as PTSD or depression—were five times as likely to develop sleep apnea compared to non-depressed patients. The physician then opined that it was more likely than not that PTSD contributed materially and substantially both to onset and permanent aggravation of the Veteran’s obstructive sleep apnea. No rationale was provided for opining permanent aggravation. The Board cannot make a fully-informed decision on the issue of service connection for obstructive sleep apnea because no VA examiner has opined whether the Veteran’s current obstructive sleep apnea is related to his active service, or is proximately due to or aggravated by his service-connected PTSD. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4) (2017). Cirrhosis of the Liver The Veteran seeks service connection for cirrhosis of the liver, and has asserted that the claimed disability is secondary to his hepatitis C. Service treatment records do not reflect any findings or complaints of cirrhosis of the liver. An ultrasound in June 2012 revealed multiple hyperechoic liver lesions. Under these circumstances, VA should seek a medical opinion as to whether the claimed disability is related to the condition or injury experienced in service. Horowitz v. Brown, 5 Vet. App. 217 (1993). PTSD The Veteran has indicated that his service-connected PTSD has worsened over the years and warrants an increased rating. His last VA examination was in June 2015, and the examiner indicated that the Veteran’s presentation appeared essentially unchanged with regard to psychiatric issues since last examined in 2011. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected PTSD.   TDIU The TDIU issue is inextricably intertwined and must be deferred on remand for readjudication. The matters are REMANDED for the following action: 1. After obtaining any necessary contact information and authorization from the Veteran, please request treatment records that pertain to the Veteran’s sleep study from “NovaSom,” dated from January 2015 to the present date; and associate them with the Veteran’s claims file. If, after making reasonable efforts to obtain records identified by the Veteran; and if the RO or AMO is unable to secure such records, the RO or AMO must notify the Veteran and (a) identify the specific records the RO or AMO is unable to obtain; (b) briefly explain the efforts that the RO or AMO made to obtain those records; (c) describe any further action to be taken by the RO or AMO with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. After obtaining any necessary contact information and authorization from the Veteran, please request treatment records that pertain to PTSD from the Vet Center in Springfield, Illinois; and associate them with the claims file. 3. Obtain the Veteran’s VA treatment records for the period from September 2013 to the present. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any obstructive sleep apnea. The examiner must opine whether it is at least as likely as not related to an in-service injury or disease—to include exposure to herbicides. The examiner must also opine as to whether it is at least as likely as not (1) proximately due to the service-connected PTSD (or other service-connected disability), or (2) aggravated beyond its natural progression by service-connected disability. If other causes are more likely, those should be noted. 5. Schedule a VA examination or a medical review, as appropriate, to determine the nature and etiology of the Veteran’s claimed cirrhosis. The Veteran’s claims file, to include this REMAND, must be available to the examiner. Specifically, the examiner should opine as to: (a) Whether it is at least as likely as not (50 percent probability or more) that any current cirrhosis of the liver is the result of disease or injury incurred during active service, to specifically include the Veteran’s presumed in-service exposure to herbicides? (b) Whether it is at least as likely as not (50 percent probability or more) that the hepatitis C (or other service-connected disability) has caused cirrhosis of the liver? (c) Whether it is at least as likely as not (50 percent probability or more) that the hepatitis C (or other service-connected disability) has aggravated (i.e., increased in severity or permanently worsened) any cirrhosis of the liver beyond the natural progress of the disability? 6. Afford the Veteran an appropriate VA examination, for evaluation of the service-connected PTSD. All appropriate tests should be conducted. The entire claims file, to include this REMAND, must be available to the examiner. 7. Obtain a medical opinion regarding whether the appellant had PTSD during service and if he had PTSD during service whether his drug usage was due to a psychiatric disorder. After the above development, and any additionally indicated development, has been completed, readjudicate the claims on appeal—to include entitlement to a TDIU. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mary C. Suffoletta