Citation Nr: 20034035 Decision Date: 05/15/20 Archive Date: 05/15/20 DOCKET NO. 17-64 549 DATE: May 15, 2020 ORDER Entitlement to service connection for pulmonary fibrosis is granted. FINDING OF FACT A preponderance of the evidence is not against the assertion that pulmonary fibrosis developed as the result of exposure to herbicides during service in the Republic of Vietnam. CONCLUSION OF LAW The criteria for service connection for pulmonary fibrosis have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1967 to May 1972. He died in 2019. The appellant is his surviving spouse and has been substituted into the appeal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an October 2016 rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified at a hearing before the Board. A transcript of the hearing is included in the electronic claims file and has been reviewed. Service Connection The Veteran claimed, and the appellant now claims, that exposure in Vietnam to herbicides such as Agent Orange led to the development of pulmonary fibrosis. Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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 disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during active service the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 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 U.S.C. § 1116; 38 C.F.R. § 3.307. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, several diseases listed under 38 C.F.R. § 3.309 (e) shall be service connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113, 38 C.F.R. § 3.307 (d) are also satisfied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Evidence and Analysis The evidence in this matter consists of lay assertions from the Veteran, service personnel records (SPRs), service treatment records (STRs), several medical journal articles discussing herbicide exposure and lung disorders, VA and private treatment records, a VA medical opinion dated in August 2016, and several private medical opinions from treating physicians, received between 2016 and 2018. For the following reasons, a service connection finding is warranted for pulmonary fibrosis. First, the medical evidence documents that the Veteran had pulmonary fibrosis. This is evidenced in private and VA treatment records and medical reports and in the death certificate. Second, the evidence establishes herbicide exposure during service. The Veteran served in the Republic of Vietnam between May 1970 and May 1971. Although a presumption of service connection may not be awarded here – pulmonary fibrosis is not listed under 38 C.F.R. § 3.309(e) – the exposure to herbicides may nevertheless be presumed. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (a claimant can establish service connection for disability due to Agent Orange exposure with proof of direct causation). Third, a preponderance of the evidence does not establish that pulmonary fibrosis is not related to herbicides exposure. See 38 C.F.R. § 3.303. Certain evidence counters the claim. In the August 2016 VA report, an examining VA physician stated that “no basis” existed to find pulmonary fibrosis related to herbicides exposure in Vietnam. In support, the examiner noted that the Veteran’s pulmonary fibrosis was characterized as “idiopathic” meaning that its cause was unknown. The examiner also noted that the disorder was not listed as presumptively related to herbicides exposure under 38 C.F.R. § 3.303(e), and that a relationship between the disorder and herbicides has not been noted by the Institute of Medicine (IOM). The examiner stated that exposures related to post-service employment (e.g., farming) were more likely the cause of pulmonary fibrosis. Certain other evidence supports the claim. The Veteran submitted into evidence several medical articles linking herbicides exposure and pulmonary fibrosis. Moreover, treating physicians support the claim. In an October 2017 letter, a treating primary care physician noted exposure to Agent Orange, noted its contents such as dioxin, and stated that dioxin “is absolutely known to cause inflammation in the lungs resulting in lung remodeling commonly called fibrosis.” The physician concluded that the exposure caused the Veteran’s interstitial fibrosis “which now has caused a cascade of further events worsening his health situation.” In a September 2017 letter, a treating pulmonary specialist stated that it was “reasonable to propose” that the Veteran’s pulmonary fibrosis resulted from exposure to Agent Orange because dioxin “has been associated with pulmonary fibrosis based on some research studies and herbicides have also been associated with lung disease[.]” Lastly, the death certificate itself states that pulmonary fibrosis due to Agent Orange exposure caused death. The medical opinions addressing the claim are of probative value because they are provided by physicians familiar with the Veteran’s claim, they are based on the evidence of record, they are explained in detail, and they are supported by a rationale. See Bloom v. West, 12 Vet. App. 185, 187 (1999). Based on the foregoing, the Board cannot find that a preponderance of the evidence is against the claim to service connection. Indeed, the evidence is divided with persuasive medical opinions for and against the claim. As such, this is an appropriate case in which to invoke VA’s doctrine of reasonable doubt and grant the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher McEntee, 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.