Citation Nr: 19166317 Decision Date: 08/27/19 Archive Date: 08/27/19 DOCKET NO. 16-51 429 DATE: August 27, 2019 ORDER Entitlement to service connection for Idiopathic Pulmonary Fibrosis (IPF), including due to exposure to Agent Orange, is granted. FINDINGS OF FACT 1. The Veteran served in Vietnam during the Vietnam War era, so it is presumed he was exposed to herbicides (including the dioxin in Agent Orange) while there. 2. Although IPF is not a condition presumptively associated with exposure to Agent Orange, the medical evidence of record – when considered collectively – indicates that it is as likely as not, if not more than likely, that the Veteran’s IPF is a result of his exposure to Agent Orange in Vietnam. CONCLUSION OF LAW When resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for IPF. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1969 to August 1971, including in the Republic of Vietnam. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision of a Department of Veterans Affairs (VA) regional office (RO). Entitlement to Service Connection for IPF The Veteran contends that his IPF is from exposure to Agent Orange in Vietnam. There is no disputing he has this claimed condition; VA and private medical records show a history of IPF and consequent right lung transplant in April 2016. So resolution of this appeal turns, instead, on whether there is the required attribution of this disease to his military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). Since he served in Vietnam during the Vietnam Era, it is presumed the Veteran was exposed to herbicide agents, including the dioxin in Agent Orange, while stationed in Vietnam. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Certain chronic diseases (listed in 38 C.F.R. § 3.309(e)) are presumed to be the result of exposure to Agent Orange. 38 U.S.C. § 1116. However, IPF is not one of these diseases. Nevertheless, service connection for the Veteran’s IPF still may be established, instead, based on direct causation (i.e., by affirmative proof of the required correlation (“nexus”) between inception of this disease and his presumed exposure to Agent Orange in Vietnam). See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). See also McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which in actuality involved exposure to radiation, are nonetheless equally applicable to claims based, instead, on exposure to Agent Orange). In a February 2016 letter, two private physicians in the Mayo Clinic’s Lung Transplant Program in Florida confirmed the Veteran was a patient there and explained that, although there are no specific causes for pulmonary fibrosis, there are certain risk factors and/or environmental toxins that are associated with a higher incidence of this disease. They then go on to point out that the Veteran’s medical records indicate he was exposed to Agent Orange during the Vietnam War and, although he smoked cigarettes for a very short period of time, it is very unlikely this could be a factor in his condition (referring to his IPF). They acknowledged that he had worked for a paper factory, where employees were required to wear special protection masks, which they explained are usually quite effective in preventing the inhalation of toxic materials. Therefore, given the above, and with the well-established fact that pulmonary fibrosis can be triggered by exposure to a multitude of chemicals and organic materials, these commenting physicians indicated they cannot rule out completely the possibility that the exposure to Agent Orange could have caused an inflammatory reaction in the Veteran’s lungs that with time evolved into pulmonary fibrosis (IPF). These physicians’ opinion is couched in speculative or equivocal terms so is insufficient, alone, to establish the required correlation between the Veteran’s presumed exposure to Agent Orange in service and eventual development of IPF. Statements that are inconclusive as to the origin of a disorder generally cannot be employed as suggestive of a linkage between the disorder and the Veteran's military service. See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993). However, by the same token, these types of opinions also cannot be used to rule out this purported correlation, either. Ultimately, noncommittal opinions like this amount to "nonevidence," neither for nor against the claim, because service connection may not be based on speculation or remote possibility. See generally Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). See also 38 C.F.R. § 3.102 (when considering application of the benefit-of-the-doubt doctrine, reasonable doubt is one within the range of probability, as distinguished from pure speculation or remote possibility). Indeed, in past decisions the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) also had held that saying a condition "may" or “could” or “possibly” be related to the Veteran's military service is tantamount to saying it just as well "may not" or “could not” or “possibly not” be related to his service, so, because of this equivocality, also an insufficient basis to grant service connection. See Obert v. Brown, 5 Vet. App. 30 (1993); Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Winsett v. West, 11 Vet. App. 420 (1998). An etiological opinion has to be viewed in its entire context, however, and not characterized solely by the medical professional's choice of words. See Perman v. Brown, 5 Vet. App. 237, 241 (1993); Lee v. Brown, 10 Vet. App. 336, 338 (1997). Moreover, additional precedent cases have been more recently issued shedding further light on how to properly assess and determine the probative value of these noncommittal opinions. Notably for instance, in Hogan v. Peake, 544 F.3d 1295 (Fed. Cir. 2008), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) indicated a determination regarding service connection requires consideration of all pertinent medical and lay evidence, including medical opinions that do not state definitively when a particular disorder or condition began; therefore, classifying a medical opinion as "non-evidence" is "troubling." In Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009), the Federal Circuit Court more recently held that an examiner's statement, which recites the inability to come to an opinion, provides neither positive nor negative support for service connection; therefore, it is not pertinent evidence regarding service connection. The remainder of the report, however, must be considered as evidence of whether the disability was incurred in service. An even more recent precedent case also admonished the Board for relying on medical opinions that also were unable to establish this required linkage, without resorting to mere speculation, as cause for denying the Veteran's claims. See Jones v. Shinseki, 23 Vet. App. 382 (2010). In Jones, the Court noted it was unclear whether the examiners were unable to provide this requested definitive medical comment on etiology because they actually were unable to since the limits of medical knowledge had been exhausted or, instead, for example, needed further information to assist in making this determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data. The Court in Jones acknowledged there are instances where a definitive opinion cannot be provided because required information is missing or can no longer be obtained or current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (noting the Board need not obtain further medical evidence where the medical evidence "indicates that determining the cause is speculative"). The Court in Jones held, however, that in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. The Jones Court acknowledged that an "examination is not inadequate merely because the examiner states he or she cannot reach a conclusion without resort to speculation." Jones, 23 Vet. App. at 391. The Court also found that "VA is not bound to proceed through multiple iterations of medical opinions until it declares that no further examinations would assist the claimant[,]" which, in the Court's view, was "inherent in a finding that the duty to assist has been fulfilled." Id. The Court in Jones explained that the duty to assist, rather, requires VA to obtain all relevant information that may reasonably be obtained before the Board may rely on a VA medical examiner's opinion to deny a claim and enumerates the steps under which the duty to assist may apply. Id., at 388. The Court first found that the duty to assist applies when "an examiner specifically identifies additional information that would facilitate a more conclusive opinion." The Court then found that "it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion." Id., at 389. The Court in Jones went on to point out that, while an opinion that diagnosis or etiology was not possible without resorting to speculation was just as much a medical conclusion as a firm diagnosis or a conclusive opinion, a bald statement that it would be speculative to render an opinion as to etiology or diagnosis was ambiguous and, thus, it must be clear that the examiner has considered "all procurable and assembled data," by obtaining all relevant tests and records that might reasonably illuminate the medical analysis. Id., at 390. Here, because of these apparent deficiencies in that February 2016 opinion, when submitting his October 2016 Substantive Appeal to the Board (on VA Form 9), the Veteran also submitted an additional supporting medical statement, i.e., nexus letter from his physician at the local VA Medical Center (VAMC) in Jackson, Mississippi. In relevant part, this commenting physician indicated it is “more than likely” the Veteran’s IPF is the result of his presumed exposure to Agent Orange in Vietnam. As well, at other times during the pendency of this appeal, the Veteran submitted copies of other Board decisions granting claims of entitlement to service connection for IPF or similar disease based on exposure to Agent Orange in Vietnam. So he is at a lost to understand why those other claims, with similar facts, were granted but his, instead, was denied. Although those other Board decisions do not have any precedential effect on this appeal (see below for explanation), when considering the February 2016 medical opinion in combination with the more definitive additional medical opinion in October 2016, it is at least as likely as not, if not more than likely, the Veteran’s IPF is the result or consequence of his presumed exposure to Agent Orange in Vietnam. In this circumstance this reasonable doubt is resolved in his favor and his claim granted rather than denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.   According to the holding in Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), "a [V]eteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."); see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). Rather, this need only be an "as likely as not" proposition, which in this instance it is for the reasons and bases discussed. Thus, the Board finds that the Veteran meets the criteria for service connection for IPF. This being the case, his claim is granted. ] KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Poindexter The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.