Citation Nr: 20011997 Decision Date: 02/13/20 Archive Date: 02/12/20 DOCKET NO. 14-10 421 DATE: February 13, 2020 ORDER Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD), and asthma is denied. FINDING OF FACT The Veteran does not have a current diagnosis of COPD, and his asthma did not manifest in service and is not otherwise related to service, to include as due to exposure to Agent Orange. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory disability to include COPD and asthma have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1953 to August 1956, and August 1959 to October 1979. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington which, inter alia, denied service connection for COPD. In June 2011, the Veteran filed his notice of disagreement, was issued a statement of the case in January 2014, and in February 2014 perfected his appeal to the Board requesting a Board hearing. In January 2017, the Board remanded the Veteran’s claim for a Travel Board hearing which was subsequently scheduled for April 10, 2017. In March 2017, the Veteran withdrew his request for a Board hearing. In March 2019, the Board, among other things, remanded the Veteran’s claim of entitlement to service connection for COPD for a new opinion as to the etiology of the Veteran’s COPD. Service connection The Veteran stated that his COPD is a direct result of Agent Orange exposure in Vietnam during service and that he complained about breathing problems while in service. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA laws and regulations provide that, if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A Veteran who “served in the Republic of Vietnam” between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The Veteran’s DD-214 indicates the Veteran served as a field medical assistant technician, is a recipient of the Vietnam Service Medal, and military personnel records indicate that the Veteran was assigned to 1st Unit Marine Air Wing located in Danang in the Republic of Vietnam from July 1969 to December 1969. Thus, service in Vietnam has been verified and the Veteran is presumed to have been exposed to Agent Orange. The record contains a diagnosis other than COPD. Therefore, the Board has expanded the issue on appeal to include all respiratory disabilities, to include COPD and asthma, consistent with the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service treatment records from January 1975 note that the Veteran was treated for chest pain and tightness. Service treatment records from September 1976 noted some accentuation of the bronchovascular markings suggesting a chronic inflammatory process such as bronchitis or previous pneumonic processes. Service treatment records from June 1977 noted chest pain after exertion. The Veteran’s August 1979 medical history report upon retirement and August 1979 medical examination report upon retirement are both normal with no indication of a pulmonary disease. June 2004 private treatment records note a diagnosis of asthma. A July 2012 VA examination report for ischemic heart disease (IHD) notes that the Veteran complained of dyspnea. A September 2019 private spirometry report noted normal spirometry. A November 2019 VA examination report noted that the Veteran had reported onset of dyspnea 4 to 5 years after separation from service in 1979 with eventual diagnosis of asthma. The examiner opined that the Veteran did not have a diagnosis of COPD, but noted mild, intermittent asthma based on a pulmonary evaluation in 2004. The examination noted normal, serial pulmonary function tests indicating no significant respiratory impairment, cough complaints not consistent with COPD, and no obstructive pulmonary condition. The examiner reported that complaints of cough and chest tightness can be seen with asthma and COPD, but lung examinations in service did not find wheezing, or crackles which would be an expected physical examination finding. The examiner stated that the pulmonary specialist implied that cough is not of pulmonary etiology, and indicated that non-pulmonary causes for cough include post-nasal drip, gastroesophageal reflux disease, silent aspiration, and a “nervous habit”. The examiner further stated that the diagnosis of asthma lacks proximity to the service period and that the etiology of asthma is thought to be an intrinsic sensitivity to inhaled irritants, such as dust, pet dander, and airborne allergens. The examiner stated that asthma is not a medically expected outcome from herbicide agent exposure and not supported by medical literature including the National Academy of Sciences, Veterans and Agent Orange, Update 2018. Considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a respiratory disability to include COPD or asthma. Initially, the Board notes that neither COPD nor asthma is on the list of diseases presumed service connected in veterans exposed to Agent Orange. However, service connection may still be established on a direct basis. See 38 U.S.C. § 1113(b) (2012); 38 C.F.R. § 3.303(d) (2017) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a Veteran from establishing service connection with proof of actual direct causation). The Board notes that for the Veteran’s claim of service connection for COPD to be granted, the record would have to contain a diagnosis of COPD. As discussed above, the Veteran’s VA treatment records are negative for symptoms or a diagnosis of COPD, and a diagnosis of COPD is not otherwise shown by the evidence of record. The Court has consistently held that service connection cannot be awarded in the absence of a current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (citing Brammer v. Derwinski, 3 Vet. App. 223 (1992), and Rabideau v. Derwinski, 2 Vet. App. 141 (1992)) aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Thus, regardless of the Veteran’s exposure to an herbicide agent during active duty service, without evidence to show that the Veteran suffered from COPD, service connection for COPD must be denied. Under 38 U.S.C. § 5107 (a), a claimant has the responsibility to present and support a claim for VA benefits. See Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the “support” requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his or her benefits claim). For the foregoing reasons, the preponderance of the evidence reflects that the Veteran has not met the current disability requirement regarding to his service connection claim for COPD. As the Veteran has not met his burden regarding an essential element of his claim, the claim for service connection for COPD must be denied. As previously noted, the Veteran does have a diagnosis of asthma. However, the preponderance of the evidence reflects that service connection for asthma is also not warranted. In this regard, the November 2019 VA examiner opined that the Veteran’s asthma is an “intrinsic sensitivity to inhaled irritants” and also “is not a medically expected outcome from herbicide agent exposure”. The examiner explained the reasons for his conclusions based on an accurate characterization of the evidence of record, including the service treatment records and the Veteran’s lay statements indicating the onset of dyspnea 4 to 5 years after separation. He also referenced the National Academy of Sciences and medical literature. Thus, his opinion is afforded significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is no contrary medical opinion in the evidence of record and the evidence does not otherwise indicate that the Veteran’s asthma is related to Agent Orange exposure or anything else in service. The Board acknowledges the Veteran’s contention that his respiratory disabilities are due to Agent Orange exposure in service. However, while the Veteran is competent to provide testimony or statements relating to symptoms or facts of events that he has observed and is within the realm of his personal knowledge, he is not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The record does not show, nor does the Veteran contend, that he has specialized education, training, or experience that would qualify him to render a diagnosis or render a medical opinion on this matter. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the issue in this case is outside the realm of common knowledge of a lay person because it involves a complex medical issue that goes beyond a simple and immediately observable cause-and-effect relationship. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). Thus, the Veteran’s statements in this regard are not competent and are afforded no probative weight. For the above stated reasons, the preponderance of the evidence weighs against a nexus between a respiratory disability and service, and against service connection on any other basis. The benefit-of-the-doubt doctrine is therefore not for application, and the claim for service connection for a respiratory disability must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maddox, Associate Counsel 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.