Citation Nr: 20021353 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 14-28 612A DATE: March 25, 2020 ORDER The claim for service connection for idiopathic pulmonary fibrosis, to include as due to exposure to herbicide agents and/or chemicals, is denied. Entitlement to a total disability rating due to individual unemployability resulting from service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran was not exposed to herbicide agents during active service. 2. The Veteran’s idiopathic pulmonary fibrosis was not present in service or until many years thereafter and is not etiologically related to any incident of active military service, to include chemical exposure. 3. The Veteran is not service connected for any disabilities. CONCLUSIONS OF LAW 1. Idiopathic pulmonary fibrosis was not incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 1137; 38 C.F.R. § 3.303, 3.307, 3.309. 2. The criteria for entitlement to TDIU are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1959 to June 1960 with the Women’s Army Corp (WAC). The Veteran died in May 2014 and the appellant is her surviving spouse. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The appellant in this case is the Veteran’s surviving spouse who is properly substituted for the Veteran in accordance with the Veterans’ Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating a new 38 U.S.C. § 5121A allowing substitution in the case of the death of a claimant who dies on or after October 10, 2008); 79 Fed. Reg. 52977 (September 5, 2014) (codified at 38 C.F.R. § 3.1010)). Under this statute, an eligible person may process any pending claims to completion following the death of a veteran. Such request must be filed not later than one year after the date of the Veteran’s death and, as provided for in the provision, a person eligible for this substitution will include “a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title....” Id; 38 U.S.C. § 5121A. The appellant filed a request for substitution in June 2014 within a year from the death of the Veteran in May 2014, and the agency of original jurisdiction (AOJ) granted the request for substitution in September 2014. Thus, the claims on appeal are properly before the Board with the appellant substituting for the deceased Veteran. The appellant testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) at the RO in June 2018. A transcript of the hearing is included in the claims file. This case was previously before the Board in July 2018 when it was remanded for additional development. It has now returned to the Board for further appellate action. 1. Entitlement to service connection for idiopathic pulmonary fibrosis, to include as due to exposure to herbicide agents and/or chemicals. The appellant contends that service connection is warranted for the Veteran’s idiopathic pulmonary fibrosis due to chemical and herbicide agent exposure during active service. In statements associated with her original claim for service connection, the Veteran reported that she was exposed to various chemicals during her period of active service at Fort McClellan in Alabama. She alleged several methods and types of possible exposure: herbicide agents were tested and stored at Fort McClellan; a private chemical company operated a plant nearby that manufactured polychlorinated biphenyl (PCB), a component of certain herbicide agents; she went through a “gas chamber” as part of her basic training; and, that she was exposed to herbicide agents and various other chemicals through her duties as a supply clerk and driving a mail truck throughout the base. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. See 38 U.S.C. §§ 1110, 1131; 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 relevant disease or an 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). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). The Board concludes that while the Veteran had a chronic lung disability and was exposed to various chemicals during service, she was not exposed to herbicide agents and the preponderance of the evidence weighs against finding that her pulmonary fibrosis began during service or is otherwise related to an in-service injury, event, or disease. The first two elements of service connection are present in this case. VA and private medical records dating from 2007 document findings of idiopathic pulmonary fibrosis with frequent bouts of pneumonia. The Veteran was noted to experience a progressive decline in lung function due to pulmonary fibrosis in 2011 and used oxygen regularly to combat shortness of breath and wheezing since 2012. She died in May 2014 due to idiopathic interstitial lung disease. A current disability is therefore demonstrated. Regarding an in-service injury, the appellant contends that the Veteran was exposed to multiple types of chemicals during active service, including herbicide agents. As discussed in further detail below, the Board finds that while the Veteran was not exposed to herbicide agents during active service, she did encounter some chemical exposure during her period of service at Fort McClellan. Turning first to the Veteran’s claimed herbicide exposure, she generally reported in July 2011, July 2012, and September 2012 statements that she was exposed to herbicide agents during active duty at Fort McClellan. The Veteran did not provide any specifics regarding her claimed exposure, aside from noting in September 2012 that “[c]hemicals were in constant use and being tested daily, including agent orange” and she was “breathing the chemicals around this chemical testing base.” VA regulations provide for a presumption of service connection for some diseases associated with exposure to certain herbicide agents. 38 C.F.R. §§ 3.307, 3.309. However, the presumptions are only applicable to veterans who served in the Republic of Vietnam from January 1962 to May 1975 or operated in or near the Korean Demilitarized Zone (DMZ) from April 1968 to August 1971. 38 C.F.R. § 3.307(a)(6)(iii) and (iv). The Veteran did not serve in Vietnam or Korea during the applicable period. Despite the inapplicability of presumptive service connection based on herbicide agent exposure, service connection is still possible in this case if the evidence establishes that the Veteran’s pulmonary disability is directly related to herbicide agent exposure. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (when the evidence does not warrant presumptive service connection, an appellant is not precluded from establishing service connection with proof of direct causation). After review of the record, the Board finds that the Veteran was not exposed to herbicide agents during active duty service. Service personnel records confirm that the Veteran was present at Fort McClellan and served as a supply clerk, but they contain no verification of herbicide agent exposure. The Veteran wrote that she was exposed to herbicide agents by virtue of her presence on the base, but did not report any physical contact or involvement with chemical manufacturing or testing. Service treatment records are negative for complaints or treatment related to the respiratory and pulmonary systems and the Veteran’s lungs were normal at the May 1960 examination for separation. VA also made multiple attempts to confirm the Veteran’s reported exposure at Fort McClellan, but record searches utilizing the Veteran’s unit and location have all been negative. In July 2011, the National Personnel Records Center (NPRC) found that there were no records indicating the Veteran was exposed to herbicides during active service. Additionally, the claims file contains a September 2019 letter from the Armed Forces Pest Management Board, summarizing the results of the Department of Defense’s (DOD) search of Federal records relating to Agent Orange (Herbicide Orange) and other tactical herbicides. The “extensive” records, show that “Herbicide Orange and other tactical herbicides were never used or tested at, disposed of, transported through, or stored on Fort McClellan.” The Board has considered the Veteran’s statements, and while she is competent to report exposure to chemicals that she saw and smelled, she did not possess the necessary expertise to identify the chemicals as herbicide agents. The Board finds that the evidence received from various service departments is more probative regarding whether herbicide agents were present at Fort McClellan. Therefore, the Board finds that the Veteran was not exposed to any herbicide agents during active service. The appellant also contends that the Veteran was exposed to other chemicals during service, to include PCB and chemicals associated with “gas chamber” testing during basic training. Regarding PCB exposure, in September 2012, the Veteran submitted a partial internet article noting that an agrochemical company, Monsanto, ran a plant near Fort McClellan in Alabama that manufactured PCB, a “principal component of agent orange.” VA’s website also includes information regarding potential exposures at Fort McClellan. VA recognizes that members of certain units, including WAC, “may have been exposed to one or more hazardous materials, likely at low levels, during their service at Fort McClellan.” Potential exposures included PCB from the Monsanto plant in the neighboring town as the chemical entered the environment exposing the surrounding community. This evidence establishes that the Veteran likely had some chemical exposure during service, including exposure to PCB. Regarding the appellant’s contentions that the Veteran was exposed to chemicals via “gas chamber” testing during service, there is no evidence of such exposure aside from the Veteran’s own statements. As noted above, the Veteran was competent to report exposure to chemicals generally, but she was not competent to identify the specific compounds utilized in testing. In any event, the Board will resolve any doubt in favor of the Veteran and the appellant and finds that the Veteran was exposed to various chemicals (including PCB) during service through her proximity to the Monsanto plant. The Board will now turn to the third element of service connection—whether a link exists between the Veteran’s idiopathic pulmonary fibrosis and the in-service chemical exposure. After review of the evidence, the Board finds that the competent evidence weighs against a finding that the Veteran’s lung disease was related to her in-service chemical exposures. The contents of the service and post-service treatment records weigh against the service connection claim. As discussed above, service records are negative for any evidence of a pulmonary disability. The Veteran’s lungs were normal at separation and she denied experiencing dizziness, fainting spells, asthma, shortness of breath, or a chronic cough on the separation report of medical history in May 1960. There is also no lay or medical evidence of pulmonary fibrosis until decades after the Veteran’s separation from service. The appellant testified that her lung problems were first manifest in approximately 2004 and in a September 2012 statement, the Veteran reported that her pulmonary fibrosis was first diagnosed at a private facility in 2007. This dates the onset of the Veteran’s respiratory problems to more than 40 years after service. A webpage identified by the appellant’s representative in March 2020 (providing an overview of idiopathic pulmonary fibrosis) implies that the condition, manifested by scarred lung tissue, has a delayed onset. However, the webpage also indicates that the condition develops over “months to years,” signifying that a four-decade development period is not indicative of the typical disease course. Thus, the absence of evidence of pulmonary fibrosis during service and until more than 40 years thereafter is evidence weighing against the claim for service connection. In 2013, the Veteran submitted three medical opinions in support of her claim. In June 2013, her VA pulmonologist opined that it was “definitely possible,” the Veteran’s exposure to heavy chemicals was the reason for her lung condition. Similarly, in July 2013, a VA pulmonologist and private pulmonologist also attributed the Veteran’s disability to heavy chemical exposure during active service. The private physician identified the link as “probable” while the VA doctor found that it was “very probable.” The Board finds that these opinions are of little probative value for multiple reasons; first, the use of language including “definitely possible,” “probable,” and even “very probable,” is speculative and does not provide a clear link between the Veteran’s in-service exposure and pulmonary fibrosis. Second, the medical opinion statements are solely based on the history provided by the Veteran regarding her chemical exposure, a history which is inaccurate. The medical opinions are predicated on an assumption that the Veteran had “heavy chemical exposure.” There is no evidence the physicians reviewed any evidence from the Veteran’s claims file regarding her actual chemical exposure and their opinions are based on her own reported exposures. The Board does not know how the Veteran described her chemical exposure, to include the type of chemicals or mechanism of exposure. As noted above, the Board has determined the Veteran was not exposed to herbicide agents during service, and the exposure she had (from a nearby manufacturing plant) does not appear to coincide with the physicians’ characterization of “heavy chemical exposure.” Based on the speculative nature of the medical opinions, as well as the failure to consider the accurate facts of the Veteran’s exposure, the Board finds that the June 2013 and July 2013 medical opinions are of little probative value. Weighing against the claim for service connection is the opinion of a January 2020 VA examiner. After reviewing the complete claims file, the VA examiner concluded that the Veteran’s pulmonary fibrosis was not due to chemical exposure during active service. The examiner observed that pulmonary fibrosis can be due to long-term exposure to toxins and pollutants such as silica dust, asbestos fibers, hard metal dusts, coal dust, grain dust, and bird and animal droppings. The evidence establishing the Veteran’s actual chemical exposure during service, including her statements, are not consistent with these types of exposure. The examiner also noted that the mechanism of the Veteran’s exposure: from travelling around and living on the base for less than a year, was not consistent with the type of exposure that causes pulmonary fibrosis. Finally, the examiner reviewed the Veteran’s statements and the medical opinions in support of the claim, but noted that the lay statements only prove “the existence of pulmonary problems several years after separation from service” and the June and July 2013 medical opinions did not “definitively confirm that the cause of the Idiopathic Pulmonary Fibrosis was due to exposure to chemicals during service.” The Board finds that the January 2020 VA medical opinion is of substantial probative value as it was rendered following a complete review of the claims file, was based on the accurate facts of the case, and was accompanied by a well-reasoned and well-supported rationale. It therefore outweighs the medical evidence submitted to support service connection. The Board also observes that VA’s own website, while providing information in support of in-service chemical exposure, does not support a link between the Veteran’s exposure and the claimed disability. VA acknowledged that some members of Fort McClellan were exposed to low levels of chemicals, including PCB, from the nearby chemical plant. VA also acknowledged that several investigations have been performed to characterize the exposure of nearby residents to PCBs from the Monsanto plant. In 2015, the Agency for Toxic Substances and Disease Registry (ATSDR) published an assessment of the health risks caused by airborne PCBs and concluded that the concentrations found were “not expected to result in increased cancer risk or other harmful health effects in people living in the neighborhoods outside the perimeter of the former PCB manufacturing facility.” Thus, VA has not recognized any relationship between exposure from the Monsanto chemical plant and the development of disabilities, to include pulmonary conditions. Service connection is possible for certain chronic disabilities under 38 C.F.R. § 3.303(b) based on a continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran’s idiopathic pulmonary fibrosis is not a chronic disease under 38 C.F.R. § 3.309(a), and neither the Veteran nor the appellant have reported the presence of continuous symptoms since service to support service connection under 38 C.F.R. §§ 3.303(a) and (d). Thus, an award of service connection based on a continuity of symptoms is not possible. The Board has also considered the contentions of the Veteran and appellant regarding service connection, but notes that as lay persons, they are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). The Board acknowledges that the Veteran is competent to report her experiences regarding chemical exposure and observable symptoms, but finds that her opinion as to the cause of the symptoms simply cannot be accepted as competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). Similarly, while the appellant worked as a research chemist for several years, his opinion that the Veteran’s pulmonary fibrosis is related to in-service chemical exposure is not accompanied by any medical knowledge or first-hand knowledge or observations regarding the type and amount of chemical exposure experienced by the Veteran. The Veteran and the appellant are both considered laypersons and their opinions do not constitute competent medical evidence in favor of the claim. In sum, the preponderance of the competent evidence is against a link between the Veteran’s chemical exposure during service and her idiopathic pulmonary fibrosis. The claim is therefore denied. 38 U.S.C. § 5107(b). 2. Entitlement to TDIU. The appellant claims that TDIU is warranted in this case as the Veteran was unable to work due to idiopathic pulmonary fibrosis. However, the record reflects that the Veteran was not service connected for any disabilities prior to her death and the Board has denied the appellant’s substituted claim for service connection for pulmonary fibrosis. As service connection is not in effect for any disabilities, the Board must deny the claim for TDIU as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that where the law is dispositive the claim should be denied, or appeal terminated because of the absence of legal merit). M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Riley, 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.