Citation Nr: 21000688 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-56 097 DATE: January 5, 2021 REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to herbicide exposure is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1968 to December 1969. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to herbicide exposure is remanded. This matter was previously before the Board in November 2019. In its decision, the Board remanded the COPD claim to the agency of original jurisdiction (AOJ) for additional development. The Veteran is seeking service connection for (COPD), to include as due to herbicide exposure. It is not disputed that the Veteran has a current diagnosis of COPD. Although the Board sincerely regrets the additional delay, another remand is necessary to ensure substantial compliance with the Board's November 2019 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In order to fully develop the Veteran’s claim, the Board considers evidence with regard to service connection. The three-element test requires: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). As mentioned above, the Veteran’s current diagnosis of COPD is conceded. In addition, the Veteran had service in Vietnam, therefore, exposure to Agent Orange is conceded. It is necessary for the Board to have sufficient information to determine whether the Veteran’s current COPD is related to his time in service, to include herbicide exposure in the Republic of Vietnam. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The COPD lung disorder at issue is not an enumerated “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions based on “chronic” symptoms in service and “continuous” symptoms since service at 38 C.F.R. § 3.303(b) do not apply here. Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). However, under 38 C.F.R. § 3.303 (d), disorders diagnosed after discharge may also still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. See Combee v. Brown, 34 F.3d 1039, 1043(Fed. Cir. 1994). Further, COPD lung disorder is not an enumerated presumptive condition based on exposure to Agent Orange. However, the Court has held that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other non-presumptive conditions based on exposure to Agent Orange. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). A medical opinion which concludes that a disease is not related to herbicide exposure solely because there is no presumption of service connection (i.e., is not listed in 38 C.F.R. § 3.309) is inadequate. Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009). A clinician cannot conclude that a disability cannot be associated with herbicide exposure simply because it is not on the list of presumptive service-connected diseases. The Veteran’s Service Treatment Records (STR’s) indicate that his January 1968 enlistment exam, there are handwritten notes regarding hay fever and allergic issues, the Veteran had a chest x-ray in February 1969 which was recorded as “normal”, the November 1969 separation exam reflects the Veteran reported medical history of pain or pressure in the chest, and a record dated June 11 and June 16, 1969 reflects that the Veteran suffered from acute bronchitis. (See STR-Medical associated with the file August 3, 1970 at pages 21, 38, 69,91). The Veteran filed his initial claim for service connection of COPD in June 2013. An April 2014 chest x-ray reflects that the “lungs are clear” and remainder of chest is normal. The Veteran submitted a statement in 2015 as follows: After discharge I held various sedentary office jobs and over the last 20 years have worked in information technology computers. I do not believe there are any significant environmental work hazards such as exposure to asbestos. I did smoke cigarettes for a few years after service however my wife was a non-smoker and I stopped smoking completely after we got married in 1973. My family has no history of chronic obstructive pulmonary disease and I have no other factors to include use of illicit drugs that would contribute to my current diagnosis of COPD. That is why I feel that my exposure to Agent Orange has caused my COPD. In April 2015, the Veteran’s representative submitted a legal memorandum to support the Veteran’s claims. The representative acknowledges that the most common risk factor for the development of COPD is cigarette smoke, and the representative includes citing authority for that proposition. However, the representative also points out that the Veteran has no significant history of cigarette smoke use, post discharge occupational hazards, illicit drug use, or familial history of COPD. The representative argues that a growing body of medical literature has reported a significant association between herbicide exposure (Agent Orange) and COPD. See April 2015 Memorandum. One study cited by the representative was published on or about August 4, 2014. The representative states that this is a long-term study associating Agent Orange exposure and diseases of the endocrine, nervous, circulatory, respiratory, and digestive systems. Sang-Wook, Yl, et al., Agent Orange Exposure and Disease Prevalence in Korean Vietnam Veteran: The Korean Veterans Health Study, Environmental Research, Vol. 133, Pg. 56-65 (August 2014). He opines that the study found an increased prevalence for certain diseases/conditions, to include COPD and chronic bronchitis. The representative also cites to a 2010 Army Chemical Corps study that he believes establishes a significant excess mortality rate from COPD for Vietnam-era Army Chemical Corps service members exposed to Agent Orange. Cypel Y., and Kang H., Mortality patterns of Army Chemical Corps veterans who were occupationally exposed to herbicides in Vietnam, Ann. Epiderniol.; Vol. 20:339-346 (2010). The 2010 Army Chemical Corps study also noted that their findings were consistent with a prior study of Australian Vietnam Veterans. See April 2015 Memorandum. The representative continues by pointing out that historically, the aforementioned studies also confirm prior epidemiological research after the town of Seveso, Italy, was exposed to dioxins in 1976. See Bertazzi, Peter A., et al., The Seveso Studies on Early and Long-Term Effects of Dioxin Exposure: A Review, Environmental Health Perspectives, Vol 106, Supp. 2 (April 1998). He continues that this study concluded, “excess mortality was observed for males with respiratory tract conditions, mainly chronic obstructive pulmonary disease (COPD).” See April 2015 Memorandum. The Veteran had service in Vietnam, therefore, exposure to Agent Orange is conceded. However, the Veteran’s testimony offers a fuller picture of the extent of the Veteran’s potential contact with the herbicide. In August 2019, the Veteran testified that there was a lot of vegetation removed so that the enemy couldn’t come up the side of the hill. He described his exposure to the herbicide as follows: And so “they came in with planes and sprayed the areas at the base of the hill that we were on. We were perched kind of up at the top and in a fairly large area, but the area going up on the sides of the hills was full of vegetation. They sprayed that area and then the people in my battery -- I was in A Battery, the people in my battery, you went down and with machetes chopped away at the vegetation to clear the area so that it was devoid of any leaves or places the enemy could hide”. The Veteran testified that he was a member of the team that used the machetes to cut away at that vegetation which had been soaked with Agent Orange. In addition, the Veteran testified that when he was in Vietnam, he felt tightness and constriction in his chest and inability to breathe during that time, similar to his COPD symptoms. On active duty he experienced constrictive breathing and airway blockage. The Veteran testified that the doctor in service called this an upper respiratory infection. The Veteran testified that he believes the issue is chronic and does not seem to go away. He testified that when he would complain about it in the military, the doctor would tell him to take Sucrets lozenges to break up the phlegm. With regard to cigarette smoking, the Veteran explained that he started smoking when he went into the Army, and that he quit soon after leaving the Army because his wife did not smoke. It is the Veteran’s testimony that the number of years he was smoking was limited to his enlistment in the Army up to shortly after his separation from service. The Veteran’s representative concludes by indicating that, considering the medical and scientific literature cited above, and the lack of the Veteran’s post-discharge contributory factors for COPD, the evidence sufficiently demonstrates that the Veteran’s COPD was causally related to his exposures to Agent Orange while stationed in the Republic of Vietnam. See April 2015 Memorandum In August 2020, the Veteran’s representative points out that when a VA examiner renders a medical opinion, a bald statement that it would be speculative for the examiner to render an opinion as to etiology or diagnosis is fraught with ambiguity. For example, it is not clear whether the examiner lacks the expertise to render such an opinion, or whether some additional testing or information is needed, and possibly available, that would permit such an opinion, either of which would render the opinion inadequate for resolving the claim. The representative states that thus, before VA can rely on an examiner’s conclusion that an etiological opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the VA’s review of the evidence. The representative cites to Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) for the proposition that a medical opinion “must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.” The Veteran was examined in May 2020. The examiner concluded as follows: There is insufficient medical evidence to establish a nexus and/or causal relationship between herbicide exposure and COPD. Other environmental exposure including dust seem to be a risk factor. Veteran does have a smoking history that is not insignificant as any smoking history is significant. There is a genetic predisposition in some individuals to the effects of smoking on the lungs. Atopy is known risk factor for COPD and it is noted that the veteran has been treated for environmental allergies, e.g.- allergic rhinitis, since at least 2013 and symptoms were reported by himself on the Report of Medical History in 1969. There are also known molecular risk factors. In short, the cause of the COPD is most likely multi-factorial, though most strongly correlated to any history of smoking. The May 2020 the VA examiner did not discuss medical treatise evidence or clinical studies in rejecting the role of Agent Orange exposure while in service in connection with the Veteran’s current COPD. The examiner did not discuss or acknowledge the Veteran’s confirmed in-service herbicide exposure, where the Veteran interacted directly with the herbicide while the Veteran engaged in strenuous work cutting vegetation with a machete, where the vegetation he was cutting was soaked with Agent Orange. Moreover, the Veteran’s service medical records show that he suffered from acute bronchitis and returned to the doctor again a week after the initial diagnosis. The Veteran testified that he believes his respiratory issue is chronic and does not seem to go away. He testified that when he would complain about it in the military, the doctor would tell him to take Sucrets lozenges to break up the phlegm. The May 2020 VA examiner mentions that “dust” may be a factor but does not elaborate on the date and source of the Veteran’s exposure to “dust”. The examiner also mentions “atopy” and “known molecular risk factors”. To the extent that “dust” is a factor, it is necessary to supply the Board with information with regard to the source and date(s) of this “dust” exposure, as well as additional information regarding the risk to this Veteran regarding the cited “atopy” and “molecular risk factors”. To the extent that additional testing or information is needed so that the examiner can provide a more thorough evaluation, the examiner should request them. It follows that a VA medical opinion with an adequate discussion is necessary so that the Board is able to evaluate the extent to which the Veteran’s COPD is related to his direct interactions with Agent Orange in Vietnam, despite COPD not being listed as a presumptive herbicide-related disease by VA.   The matters are REMANDED for the following action: 1. Obtain a VA examination and opinion from an appropriate specialist physician as to the nature and etiology of the Veteran’s COPD. The examiner should respond to the following inquiry: Is it at least as likely as not (i.e., 50 percent or more probable) that the Veteran’s current COPD either began during service or is causally related to his direct exposure to and interaction with Agent Orange in Vietnam? In answering this particular question, the VA examiner is advised that the mere fact that presumptive service connection has not been established by VA for COPD after Agent Orange exposure is not dispositive of the issue of a nexus to service. A clinician cannot conclude that a disability cannot be associated with herbicide exposure simply because it is not on the list of presumptive service-connected diseases. Rather, the VA examiner must provide a rationale supported by medical treatise evidence or clinical studies in analyzing whether or not the Veteran’s COPD is the direct result of his confirmed in-service herbicide exposure. In answering this particular question, therefore, consideration can be given to any relationship between COPD and herbicide exposure discussed in clinical studies and updates by the National Academy of Science (NAS) or any other relevant clinical studies such as those cited by the Veteran’s representative herein. The VA examiner will consider the specific facts and circumstances of this Veteran’s case. In answering this particular question, the VA examiner must explain in clinical terms with substantiation from studies or other citations, the relative weight of risk factors, to include known information about the Veteran’s case. Information the examiner should consider includes but is not limited to: the Veteran’s direct exposure to Agent Orange cutting vegetation with a machete; the Veteran’s service medical records showing acute bronchitis and the Veteran’s self-report of chronic respiratory issues in service; the Veteran’s smoking habit self-reported as limited to service in Army and shortly thereafter; exposure to “dust” identified by the May 2020 VA examiner; “atopy” and “known molecular risk factors” identified by the May 2020 VA examiner; any other factors the examiner may identify. The examination should include any diagnostic testing or evaluation deemed necessary. The claims file, including treatment records, as well as a copy of this remand, must be reviewed. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case, and   identify what additional evidence (if any) would allow for a more definitive opinion. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.M. Schneider 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.