Citation Nr: 21001120 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-65 920 DATE: January 7, 2021 ORDER The claim for service connection for chronic obstructive pulmonary disorder (COPD), to include as the result of exposure to herbicides and/or as secondary to the service-connected coronary artery disease (CAD) is denied. FINDING OF FACT COPD is not the result of active service, including exposure to herbicides including Agent Orange, nor may it be presumed to be, nor is it the result of service-connected disabilities, to include CAD. CONCLUSION OF LAW The criteria for service connection for COPD to include as the result of exposure to herbicides including Agent Orange and as secondary to the service-connected CAD are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army on active service from November 1964 to October 1966. He served in the Republic of Vietnam and was awarded the Combat Infantryman Badge. This matter comes before the Board of Veterans Appeals (Board) on appeal from a June 2015 rating decision by the Milwaukee, Wisconsin Regional Office (RO) of the U.S. Department of Veterans Affairs (VA). This claim was remanded in January 2019 to allow for initial RO review of medical evidence received subsequent to the initial 2015 VA examination and medical opinion. The claim is now again before the Board. The Board finds that the agency of original jurisdiction (AOJ) has fulfilled the duty to notify and assist the Veteran in substantiating his claim for VA benefits, as prescribed in 38 U.S.C. §§ 5100, 5102, 5103, 5109A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). All identified and relevant records have been obtained or appropriate efforts to secure them have been undertaken. Adequate examinations, considering the evidence of record and including appropriate findings and rationales for claimed conditions were afforded the Veteran, including pursuant to the January 2019 remand. 38 U.S.C. § 5103A(d), 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Neither the Veteran nor his representative have argued against a finding that the AOJ has not met its duty to assist. The Board thus finds that the AOJ has met its duty to assist and further remand is not required. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). The Veteran argues that his COPD is the result of exposure to the herbicide Agent Orange during his active service. In the alternative, he argues that his COPD is the result of his service-connected CAD. Under the relevant laws and regulations, 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. Generally, the evidence 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. Shedden v. Principi, 391 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, a disability that is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310. The Veteran is service connected for CAD, evaluated as 30 percent disabling, effective in March 2014. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected even though there is no record of such disease during service. 38 C.F.R. § 3.309(e). There is no dispute that the Veteran has been exposed to the herbicide, Agent Orange. As noted above, he had service in the Republic of Vietnam and was awarded the Combat Infantryman Badge. His exposure to the herbicide Agent Orange is therefore presumed. 38 C.F.R. § 3.307(a)(6)(iii). However, COPD is not one of the diseases listed in 38 C.F.R. § 3.309(e) for which a presumption is applicable. Notwithstanding, the Veteran may still prevail in his claim if the medical evidence establishes a causal link, or nexus, between his exposure to Agent Orange and his diagnosed COPD or, in the alternative, between the claimed COPD and active service. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). There is no dispute that the Veteran is diagnosed with COPD. A 2015 VA examination report and private and VA treatment records document the Veteran is diagnosed with COPD. In addition, the Veteran is service connected for CAD. Thus, the first two elements of Shedden and Hollins are met. There is dispute as to the third element, that of a causal link or nexus between the diagnosed COPD and exposure to Agent Orange, active service, or any incident therein; or the service-connected CAD. The 2015 VA examiner opined it was less likely than not that the diagnosed COPD was due to the service-connected ischemic heart disease, or CAD. Rather, the VA examiner stated, it is well-documented that COPD is caused by smoking; and the Veteran had a long history of smoking starting in Vietnam and quitting in 2002. Herbicide exposure was not addressed. In support of his claim and after the 2015 VA examination, the Veteran submitted a January 2016 statement and treatment records of his private physician and an internet article “What is the Connection between Agent Orange and COPD?” The private physician stated that the Veteran’s 35 year pack history of smoking was the “primary, proven, accepted” cause COPD. Agent Orange “may have” contributed to the diagnosis. In a February 2016 treatment entry, the private physician stated that is was “certainly possible that Agent Orange contributed to or aggravated” COPD. The doctor also stated that he had informed the Veteran that cigarette smoking was a known cause of COPD. While the private physician acknowledges a possibility that the Agent Orange may have contributed to the COPD, he clearly stated the Veteran’s long history of smoking to have played the most significant part in causing it. Such does raise some possibility, however, and so he Board remanded the case for additional medical review in 2019. The 2019 VA medical review was conducted and was noted to include the entire claims file, all available medical documents to include clinical tests, and medical research literature. The VA examiner documented specific review of the 2016 private medical statement and treatment records, as well as of the internet article which the Veteran had submitted. In addition, the VA examiner conceded the Veteran’s exposure to the herbicide Agent Orange, noting the Veteran served as an Army paratrooper in Vietnam. After this review of the evidence, the examiner opined it was less likely as not that the diagnosed COPD was the result of the service-connected heart disease, or of active service or any incident therein including exposure to herbicides. Rather, the VA examiner concluded the diagnosed COPD was more likely as not caused by or a result of the Veteran’s cigarette smoking history. As rationale, the VA examiner explained that review of the medical research, including the article the Veteran submitted showed there was no significant association between herbicide exposure or chemicals of interest, including Agent Orange, and spirometry-determined COPD. Rather, the examiner explained, the medical research had concluded there was inadequate or insufficient evidence of an association between chemicals of interest, including Agent Orange, and mortality from non-cancerous respiratory diseases, COPD specifically, and/or the prevalence of respiratory disorders to include COPD. No statement by the private physician meets the “at least as likely as not” standard of proof; “may have” and certainly possible” fall far short of a 50 percent probability. The statements provided by the Veteran’s treating physician are speculative in nature, at best. Moreover, the Veteran’s physician clearly pointed to the Veteran’s long history of smoking as the cause for the respiratory disorder. Therefore, the Veteran’s private physician’s statements cannot be of probative weight. Obert v. Brown, 5 Vet. App. 30, 33 (1993). In contrast, the 2019 VA examiner provided a definite opinion that the Veteran’s COPD was less likely than not due to active service, to include exposure to herbicides, and less likely due to the service-connected ischemic heart disease. Rather, the VA examiner concluded the diagnosed COPD is due to the Veteran’s history of smoking. The VA examiner stated the opinion was based on full review of the entire record in addition to review of medical research literature including the article submitted by the Veteran. As such, the VA examiner’s 2019 review and opinion is probative and carries significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran has not provided, and the record does not reflect, any other statements, opinions, or medical findings that establish a causal connection between his service-connected CAD and claimed COPD; or between the claimed COPD and active service, including exposure to herbicides to include Agent Orange or any other incident of active service. The Veteran argues that his CODP is the result of his service-connected CAD or, in the alternative, the result of his active service, to include exposure to the herbicide Agent Orange. However, while he is competent to state his symptoms, and his belief that his respiratory disorder is the result of his heart condition, exposure to Agent Orange, or his active service, he is not competent to determine the cause of his diagnosed COPD. Determining the cause of COPD is medically complex, requiring specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Absent competent evidence of a nexus, or causal connection, between COPD and the service-connected CAD, or between COPD and active service, to include exposure to herbicides or any other incident therein, service connection for COPD cannot be established. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bakke, Lila J. 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.