Citation Nr: 21000610 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 18-45 505 DATE: January 5, 2021 ORDER Entitlement to service connection for a respiratory disorder, diagnosed as chronic obstructive pulmonary disease (COPD), asthma, bronchitis, and emphysema, is granted. FINDING OF FACT The Veteran’s current respiratory disorder, diagnosed as COPD, asthma, bronchitis, and emphysema, is at least as likely as not related to his active service. CONCLUSION OF LAW The requirements to establish entitlement to service connection for a respiratory disorder, diagnosed as COPD, asthma, bronchitis, and emphysema, have been met. 38 U.S.C. §§ 1101, 1154, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had service in the Iowa Army National Guard from April 1966 to April 1972, and this service included a period of active duty for training (ACDUTRA) from August 1966 to January 1967. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision. Within one year of the August 2016 rating decision’s denial of the Veteran’s service connection claims for asthma, bronchitis, and emphysema, the Veteran submitted a December 2016 request for reconsideration in addition to a November 2016 private medical opinion related to his claims. Consequently, the August 2016 rating decision did not become final, and the Veteran's original claims remained pending under 38 C.F.R. § 3.156(b). The agency of original jurisdiction denied the claims once more in a December 2016 rating decision, and the Veteran filed a timely notice of disagreement in January 2017. As noted above, the AOJ separately adjudicated the Veteran’s service connection claims for asthma, bronchitis, and emphysema. As each claim involves a respiratory disorder, and in light of the fact that the record also contains a diagnosis for COPD, the Board has condensed the claims into one issue to encompass all current respiratory disorders. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that where there is no prior final denial of a claim, although a Veteran may identify a particular disorder, the scope of the claim cannot be limited only to the condition stated, but must be considered a claim for any disability that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that VA obtains in support of the claim). In November 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript from that proceeding is associated with the claims file. Service Connection 1. Entitlement to service connection for a respiratory disorder, to include as due to exposure to diesel fuel and fumes, herbicide agents, and/or mustard gas. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 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 disease or 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. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including bronchiectasis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection can also be established for certain diseases based on exposure to specific vesicant agents, including mustard gas and Lewisite, during active military service. 38 C.F.R. § 3.316. In such instances, the veteran is relieved of the burden of providing evidence of a nexus between the current disability and any in-service exposure. Pearlman v. West, 11 Vet. App. 443, 446 (1998). For the purposes of this presumption, full-body exposure to nitrogen or sulfur mustard is presumed to cause the development of chronic conjunctivitis, keratitis, corneal opacities, scar formation, or the following cancers: nasopharyngeal, laryngeal, lung (except mesothelioma), or squamous cell carcinoma of the skin. 38 C.F.R. § 3.316(a). Full-body exposure to nitrogen or sulfur mustard or Lewisite is presumed to cause the subsequent development of a chronic form of laryngitis, bronchitis, emphysema, asthma, or chronic obstructive pulmonary disease. Id. Finally, full-body exposure to nitrogen mustard is presumed to cause the development of acute nonlymphocytic leukemia. Id. In addition, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(a)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(i). Section 3.307(a)(6) also provides that 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 C.F.R. § 3.307(a)(6)(iii). The diseases presumed to be associated with herbicide exposure include: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). As a threshold matter, veteran status must be established as a condition of eligibility for service connection benefits. See Bowers v. Shinseki, 26 Vet. App. 201, 206 (2013). A veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 C.F.R. § 3.1(d). The term "active military, naval, or air service" includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101 (24); 38 C.F.R. §§ 3.6 (a)-(d). The fact that a claimant has established veteran status for other periods of service does not obviate the need to establish veteran status for the period of ACDUTRA or INACDUTRA on which the claim is based. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). The advantage of certain evidentiary presumptions, provided by law, that assist veterans in establishing service connection for a disability do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to veteran's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (1999), vacated on other grounds sub nom; McManaway v. Principi, 14 Vet. App. 275 (2001) (citing Paulson, 7 Vet. App. at 469-70, for the proposition that if a claim "relates to period of [ACDUTRA], disability must have manifested itself during that period; otherwise, period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim." (emphasis added in McManaway)); see also Biggins v. Derwinski, 1 Vet. App. 474, 479 (1991) (Steinberg, J., concurring). Thus, the evidentiary burden is on the claimant to show that he or she became disabled from an injury or disease incurred in line of duty during ACDUTRA or from an injury incurred in line of duty during INACDUTRA. The Veteran and the record have raised the theories that he has a respiratory disorder that is related to his exposure to diesel fuel and fumes, mustard gas, and/or herbicide agents during his active service. Regarding the Veteran’s reported exposure to diesel fuel and fumes, he testified that he received this exposure during the course of his duties working in heavy equipment maintenance in Fort Belvoir, Virginia. See November 2020 Board Hearing Transcript. The record has also raised the theory that his exposure to fumes at this time included exhaust fumes. See November 2018 Letter from Dr. B. In this regard, the Veteran reported during the November 2020 Board Hearing that while he was working on vehicles and heavy equipment machinery, the other machines would run constantly. The Veteran’s DD 214 for his period of ACDUTRA from August 1966 to January 1967 shows that his military occupational specialty (MOS) was engineering equipment repairman. The Record of Assignments in the Veteran’s military personnel records also reflects that his period of ACDUTRA included service at Fort Belvoir from October 1966 to January 1967; and the record indicated that he underwent Advanced Individual Training (AIT) in the role of engineering equipment repairman at this location. Given the circumstances of the Veteran's service, the Board accepts the Veteran's reported in-service exposure to diesel fuels and fumes, to include exhaust fumes, as credible and consistent with his service. 38 C.F.R. § 1154(a). The Veteran’s service treatment records (STRs) show that no abnormalities were noted in the Veteran's lungs and chest on clinical evaluation in an April 1966 enlistment examination. The report noted that a chest x-ray was not indicated. Although the April 1966 Report of Medical History shows that the Veteran reported a history of whooping cough, the physician's summary only noted that he had the usual childhood illnesses. The Veteran also denied having a history of tuberculosis, asthma, shortness of breath, and chronic cough. In August 1966, a Statement of Physical Condition signed by the Veteran noted that he considered himself sound and physically able to perform military duty. The Veteran added that he was considered physically qualified for military service at the time of his last physical examination in April 1966, and to the best of his knowledge and belief, he had no physical defects or conditions that would preclude the performance of military duty. Later in August 1966, the Veteran was noted have a cold. A diagnosis of upper respiratory infection was noted. In a December 1966 separation examination, the Veteran's lungs and chest were noted to be normal; and the chest x-ray was negative. In the December 1966 Report of Medical History, the Veteran checked "yes" in response to a question regarding whether he had ever coughed up blood. However, the physician's summary noted "hemoptysis - not of note." The Veteran maintained his previous denials of a history of tuberculosis, asthma, shortness of breath, and chronic cough. After service, a July 2010 private treatment record noted an assessment of COPD. The record also noted that the Veteran currently smoked one half pack per day and had a 20 pack-year smoking history. In June 2011, the Veteran was assessed to have acute bronchitis. In September 2014, a private treatment record electronically signed by Dr. B., MD, stated that the Veteran quit smoking in May 2014 and had a 50 pack-year smoking history. A subsequent October 2015 private treatment record stated that the Veteran had recently quit smoking. During the current appeal period, the Veteran was provided with a VA examination related to his claim in June 2016. In an examination report specific to respiratory disorders, the examiner stated that the only diagnosis was COPD and identified the year of diagnosis as 2013. The examiner provided a negative nexus opinion based on her determination that the Veteran's recently diagnosed COPD was not related to the episode of a cold noted 47 years ago in the Veteran's STRs in 1966. The examiner added that the disorder was most likely due to the Veteran’s 50-pack year history of smoking. The examiner also noted that she was unable to locate any information regarding the Veteran’s reported mustard gas exposure during his service at Fort Polk, Louisiana. In a November 7, 2016 letter, Dr. B. noted that a spirometry test performed in his office on that date showed that the Veteran had restrictive airway disease on top of COPD. Dr. B. stated that in his medical opinion, this was at least as likely as not due to his gas exposure during service. Dr. B. further explained that the Veteran’s exposure to herbicides, exhaust fumes, and dust particles while in service contributed significantly to his decline in pulmonary functions; and the breathing in of gases would cause damage to the lungs that would be found in later years. In a November 2018 letter, T.S., Family Nurse Practitioner-Board Certified, explained that the Veteran was a patient under her care; and his diagnoses included COPD, asthma, bronchitis, and emphysema. T.S. stated that she was familiar with the Veteran's medical history, including the Veteran's reported history of exposure to the gas chamber during basic training at Fort Polk in 1966 and his exposure to exhaust fumes and dust particles while working on heavy equipment at Fort Belvoir in 1966. T.S. added that she had examined the Veteran thoroughly while he had been under her care. T.S. stated that it was her professional opinion that it was at least as likely as not that the Veteran's COPD, asthma, and bronchitis were the direct result of the exposure that the Veteran experienced during his military service. In another November 2018 letter, Dr. B. reiterated the opinion and rationale provided by T.S. Dr. B. added that the Veteran had been a patient under his care since 1998, and the Veteran had no other known risk factors that may have precipitated his current condition. The Board notes that Dr. B.’s November 2018 medical opinion is consistent with the opinion Dr. B. previously provided in November 2016. The Board also finds that the November 2018 medical opinions from Dr. B. and T.S. are probative when considered with the other evidence of record as they address the relevant medical question at issue and were based on their understanding of the Veteran's relevant history as well as their medical expertise. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (providing that an examination is not rendered inadequate where the rationale provided by an examiner did not explicitly lay out the examiner's journey from facts to a conclusion,"); see also Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (stating that medical reports must be read as a whole in the context of the evidence of record). Although the November 2018 conclusions from Dr. B. and T.S. did not specifically include the emphysema diagnosis was that was identified in the earlier portion of their letters, the Board notes that the Veteran’s COPD diagnosis includes emphysema. See David Heitz, Is There a Difference Between COPD and Emphysema?, Healthline, Nov. 7, 2018, https://www.healthline.com/health/copd-vs-emphysema. Moreover, Dr. B. found that the Veteran had no other known risk factors for his current respiratory disorders despite the fact that the September 2014 private treatment record indicates that Dr. B. was aware of the Veteran’s smoking history. While the Board has also considered the negative opinion provided by the November 2016 VA examiner, the Board finds that it provides minimal probative value as the examiner did not address the Veteran’s theory of entitlement regarding his exposure to diesel fumes and fuel during active service. Based on the foregoing, the weight of the evidence supports finding that the Veteran's current COPD, asthma, bronchitis, and emphysema are at least partly related to the Veteran’s established exposure to exhaust fumes during his ACDUTRA service. Service connection for a respiratory disorder, diagnosed as COPD, asthma, bronchitis, and emphysema, is therefore granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In light of this grant of direct service connection, the Board need not consider any other theory of entitlement advanced. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.C. Spragins, 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.