Citation Nr: 20004048 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 14-20 683 DATE: January 16, 2020 ORDER Entitlement to service connection for lung disease, to include as due to herbicide exposure is denied. FINDING OF FACT A lung disease did not have its clinical onset in service, and is not otherwise related to active duty, to include due to the Veteran’s exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for lung disease, to include as due to herbicide exposure have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1966 to November 1969. He died in December 2016. The Appellant is the surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the RO granted substitution status to the Appellant and recognized her as a substitute claimant for the Veteran for purposes of processing the pending claims to completion. In March 2018, the Board, in pertinent part, denied service connection for a lung disease. The Appellant appealed this decision to the United States Court of Appeals for Veterans Claims (Court). Before the Court issued a decision, the parties filed a joint motion for partial remand. The joint motion would vacate the March 2018 Board denial of service connection for lung disease and remand the issue to the Board for adjudication consistent with the remand instructions. The Court granted the joint motion in December 2018. Accordingly, in June 2019, the Board remanded the issue. The case returned to the Board for further appellate review. Entitlement to service connection for lung disease, to include as due to herbicide exposure. The Appellant asserts that the Veteran’s interstitial lung disease was related to his active service. Specifically, she attributes his lung condition to exposure to herbicides agents, including Agent Orange, during his active service in Korea. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2013). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. A veteran who served in the Republic of Vietnam during active military, naval, or air service of the Vietnam era shall be presumed to have been exposed to an herbicide agent, unless affirmative evidence establishes that the veteran was not exposed during service. See 38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.307 (a)(6) (2017). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of the disease during service. See 38 U.S.C. § 1116 (a) (2012); 38 C.F.R. § 3.309 (e) Additionally, a veteran who, during active military, naval, or air service, served in or near the Korean Demilitarize Zone (DMZ), between April 1, 1968, and August 31, 1971, as determined by the DoD, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iv) (2018). The applicable criteria also provide that a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 (e), will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307 (a). While the evidence shows that the Veteran had service in a unit that operated in or near the Korean DMZ this presumption does not apply, given that he was not diagnosed with a disease subject to presumptive service connection. Nevertheless, even if a Veteran is found not to be entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If the preponderance of the evidence weighs against the claim, it must be denied. See id. Since there is an established medical diagnosis of interstitial lung disease and the Veteran exposure to herbicide agents has been conceded, the first and second elements of service connection has been met. The remaining question is whether there is competent evidence of a nexus between the current disability and the in-service disease or injury. The Veteran's service treatment records show no indication of complaints, treatment for or symptoms of a lung condition. The August 1969 separation examination found the Veteran to be normal as to the lungs and chest, and the Veteran reported no symptoms. He denied having had shortness of breath, pain or pressure in the chest, or chronic cough. The record shows that the Veteran was not diagnosed with a lung condition or interstitial lung disease while in service, nor did the disease reach a compensable degree within one year of separation from service. There was also no in-service incurrence or aggravation which caused his interstitial lung disease. A November 2009 private medical report from a pulmonary physician, notes that the Veteran had symptoms of shortness of breath since August 2009. The Veteran had no prior pneumonia or bronchitis. The physician noted that the Veteran worked paving asphalt, mowed lawns and cleaned stools with diesel fuel to keep asphalt from sticking to metal. The report also noted that the Veteran does not use a mask for those tasks. The Veteran used to smoke one and half pack of cigarettes per day for 25 years and had quit 20 yrs ago. In December 2009, the record shows the Veteran had a diagnosis of desquamative interstitial pneumonia (DIP), which is a rare condition usually affecting smokers. In December 2011 the Veteran’s pneumologist referred him for an evaluation for lung transplant. An April 2012 statement from the Veteran’s accredited agent, states that the Veteran has no history of lung disease and he never smoked. He further added that the herbicides that make up Agent Orange are known to have drastic effects on the respiratory system. A medical note from July 2012 shows a diagnosis of interstitial lung disease, etiology is non-specific interstitial pneumonitis. The note indicates that the Veteran began shortness of breath about 3 years ago (2009). At that time chest x-ray and chest CT-scan showed diffuse bilateral infiltrates. He experienced only a minimal cough and head only subacute symptoms. Because of this abnormal chest radiography, he underwent a VATS lung biopsy on December 2009. This was interpreted as showing desquamative interstitial pneumonitis there was no well-developed interstitial fibrosis and no primary vascular lesions. The process felt to be subacute in nature and no granulomas were identified. His symptoms and pulmonic function tests have shown remarkable stability with little or no progression. The Veteran was treated aggressively with prednisone and azithromycin. A December 2012 private medical record shows the examiner distinguished that the Veteran was exposed to Agent Orange in Korean War as part of his occupational history. However, no opinion was made about it. In November 2016, a private medical facility record shows that under the Veteran’s medical history, Dr. M.B.W. notes “DIP lung disease possibly associated with being exposed to agent orange while in the military”. In August 2019, an independent medical opinion was obtained after additional development had been conducted with regard to the Appellant's contentions. The VA examiner opined that it is less likely than not the interstitial lung disease was caused or aggravated by herbicide/agent orange exposure. As rationale, the examiner explained that a “review of several treating pulmonologists 2009-2012 reflect the Veteran with chronic interstitial lung disease initially caused by a rare condition of desquamative interstitial pneumonia that affects smokers”. The examiner further explained that a “search of peer reviewed medical literature is silent for causal relationship between exposure to agent orange and desquamative interstitial pneumonia and or interstitial lung disease”. The Board is grateful for the Veteran's honorable service. However, given the record before it, the Board finds that the most probative evidence in this case is not in equipoise. Rather, the evidence preponderates against the claim. Consideration has been given to the Appellant's contention that the Veteran's lung disease was related to exposure to herbicide agents while in service. The Board acknowledges the Appellant’s sincere belief as to etiology; however, the interplay of these disabilities and the Veteran's exposure to contaminants is a complex question, not amenable to lay statements and testimony. In contrast to Dr. N.B.W.'s notes on a record, the VA physician is shown to have reviewed the entire record and provided reasons and bases for the opinion that the Veteran's interstitial lung disease was not related to herbicide exposure in service. The evidence preponderates against finding entitlement to service connection for a lung disorder to include due to exposure to herbicides. The most probative evidence of record indicates that the Veteran's lung disabilities were not related to service. As the preponderance of the probative and competent evidence weighs against the claim, the claim must be denied. In reaching this determination, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Appellant's claim, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990), 38 C.F.R. § 3.102. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Romero-Sanchez, Attorney Advisor 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.