Citation Nr: 21001318 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-08 701 DATE: January 7, 2021 ORDER Service connection for lung disease, to include idiopathic pulmonary fibrosis, as a result of herbicide exposure, chemicals, and/or asbestosis, is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran’s respiratory disorders of eosinophilic pneumonia with idiopathic pulmonary fibrosis were not diagnosed in service or within one year after discharge from service and are not otherwise related to active military service to include exposure to chemicals/herbicide agents, and/or asbestosis. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder, diagnosed as idiopathic pulmonary fibrosis, to include as due to herbicide exposure, chemicals, and/or asbestosis, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107 (2012); 38C.F.R. §§3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1963 to January 1965 and from February 1965 to July 1982. He served in the Republic of Vietnam and was awarded the Purple Heart and the Vietnamese Cross of Gallantry with Palm. He died in July 2019. His surviving spouse has been properly substituted in the appeal. This matter came before the Board of Veterans Appeals (Board) on appeal from a September 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified before the undersigned Veteran’s Law Judge during a September 2017 Video Conference hearing. The transcript of the hearing is of record. In October 2017 and March 2018, the Board remanded this matter for further evidentiary development. The claim is now before the Board again for further appellate consideration. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2019). The three-element test for service connection requires evidence of: (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). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). In regard to the current claim that a lung disorder is a result of exposure to herbicide agents to include Agent Orange, generally, the Veteran (or, in this case, his surviving widow) must show the following in order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975; (2) that he currently suffers from a disease associated with exposure to certain herbicide agents enumerated under Section 3.309(e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specific time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.307(a)(6), 3.309(e) (2019). The following diseases are associated with herbicide exposure for purposes of the presumption: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as type II diabetes mellitus 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 sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2019). The National Defense Authorization Act for Fiscal year 2021 added the disorders of parkinsonism, bladder cancer, and hypothyroidism, to the list of diseases presumptively associated with exposure to herbicide agents. See 38 U.S.C. § 1116(a)(2) (2012). Background There is evidence of record indicating that the Veteran has a lung disability. As he served in the Republic of Vietnam, in-service exposure to herbicide agents is conceded. Also of record are lay statements as to his duties during service involving exposure to diesel fumes, coal, and other potentially hazardous substances. A VA examination was provided in November 2017. In October 2017 remand directives, the Board requested an opinion as to whether any diagnosed lung disability was related to service, including exposure to herbicides. Exposure to herbicides was conceded as the Veteran served in the Republic of Vietnam. The November 2017 examiner found that the Veteran’s diagnosed lung disabilities of idiopathic pulmonary fibrosis and eosinophilic pneumonia were not caused by the Veteran’s presumptive exposure to herbicides. As a rationale, the examiner cited a September 2016 statement that VA has determined that presumption of service condition based on exposure to herbicides used in Vietnam is only warranted for a listed group of disabilities. The examiner then stated that scientific and medical evidence does not support the conclusion that the Veteran’s idiopathic pulmonary fibrosis is associated with herbicide exposure and noted that the disability is not one of the diseases that the VA recognizes as associated with exposure to herbicide agents. The same rationale is offered with regard to eosinophilic pneumonia. As pointed out by the Board in a March 2018 remand decision, the VA examiner’s rationale in the 2017 examination was essentially based entirely on the fact that none of the Veteran’s respiratory disabilities were entitled to presumptive service connection based on herbicide agent exposure. See 38 C.F.R. § 3.309(e) (2019). The Board pointed out that the United States Court of Appeals for Veterans Claims has held, in the context of an opinion considering the issue of herbicide agent exposure, that “a medical nexus opinion finding a condition is not related to service because the condition is not entitled to presumptive service connection, without clearly considering direct service connection, is inadequate on its face.” See Stefl v. Nicholson, 21 Vet. App. 120 (2007). Thus, the opinion on direct service connection with respect to the issue of herbicide agents was inadequate, and on remand a new opinion with respect to the issue of herbicide agents was required. In a May 2018 VA addendum report, it was noted that the Veteran’s pulmonary diagnoses include pulmonary fibrosis, idiopathic and eosinophilic pneumonia. Additionally, the Veteran had gastroesophageal reflux disease (GERD) and laryngopharyngeal reflux (LPR) which were “important in the discussion of his case.” It was the examiner’s conclusion that idiopathic pulmonary fibrosis was less likely as not (less than 50% probability) caused by or related to exposure to herbicide agents. For rationale, she stated that the available scientific and medical evidence did not support the conclusion that idiopathic pulmonary fibrosis was associated with herbicide exposure. Moreover, she opined that the Veteran’s idiopathic pulmonary fibrosis was less likely as not (less than 50% percent probability) secondary to or caused by the Veteran’s claimed occupational exposure to coal dust and petroleum products. For rationale, she added that idiopathic fibrosis could be caused by numerous exposures to include medications, wood dust, hard metal, textiles, and silica. Long term coal dust exposure, such as in the coal mining industry could cause pulmonary fibrosis, but the presentation on chest X-ray and high-resolution computerized tomography (HRCT) on the chest were classic. The Veteran’s HRCT was not diagnostic for a coal worker’s pneumoconiosis. His primary involvement was in the lower lobes of the lungs, sparing the upper lobes which were characteristic of pulmonary fibrosis secondary to chronic exposure to coal dust. Further, she noted that while animal studies demonstrated the development of pulmonary injury as well as pulmonary fibrosis in rats exposed to jet fuels over time, there were few human studies of related exposure. Idiopathic pulmonary fibrosis was typically a disease of middle age. The Veteran was 75 years old and left service in 1982, over 35 years earlier. At the time of his separation in 1982, he was 40 years old, and had no complaints of cough and shortness of breath (SOB). His chest X-ray was normal. The first evidence of the disorder was in 2007 when it was found unexpectedly during a routine pre-op medical clearance which required a routine chest radiograph. He was also noted to have GERD with dysphagia and chronic aspiration by the gastrointestinal (GI) service in 2008. At that time, he also complained of chronic hoarseness. Ear, nose, and throat, (ENT) evaluation diagnosed the Veteran with poorly controlled GERD and chronic LPR. The VA examiner added that while the Veteran reported a 30+ hear history of chronic cough, review of the clinical records did not support this history. At a new patient appointment at VA in January 2005, the clinical note indicated that the Veteran denied chest pain, SOB, dyspnea on exertion, paroxysmal nocturnal dyspnea, chronic cough, or hemoptysis. Also, in June 2012, when the Veteran was seen for oral surgery, his lung history included no chronic SOB and no chronic cough. The VA examiner added that the Veteran’s eosinophilic pneumonia was less likely as not (less than 50% probability) secondary to or caused by exposure to herbicide agents or secondary to claimed occupational exposure to coal dust and petroleum products. For rationale, she noted that the available scientific and medical evidence did not support the conclusion that the disorder was associated with herbicide exposure. Also, the Veteran’s pulmonary radiographic studies were not consistent with chronic coal dust exposure or pulmonary fibrosis secondary to chronic exposure to petroleum products and fuels. Additionally, the Veteran’s exposures to these agents was greater than 30 years prior to the development of eosinophilic pneumonia. The medical literature noted that medications such as non-steroidal anti-inflammatory drugs (NSAIDs), (e.g. ibuprofen), had been implicated in triggering an allergic response which resulted in eosinophilic pneumonia. VA GI noted that the Veteran had chronic, unquantified usage of NSAIDS during their initial evaluation. Analysis The question for the Board is whether the Veteran has a lung disorder that was at least as likely as not related to an in-service injury event, or disease to include exposure to herbicide agents (Agent Orange) chemicals, and/or asbestos. VA treatment records document that the Veteran was diagnosed with eosinophilic pneumonia with idiopathic pulmonary fibrosis during the relevant appeal period. Thus, the requisite diagnosis of a lung disorder is demonstrated. However, the preponderance of the evidence shows that the Veteran’s lung disorders did not begin in service or are otherwise related to active military service to include exposure to herbicide agents (Agent Orange), chemicals, and/or asbestos. As already noted, it is conceded that the Veteran was exposed to herbicides during service eosinophilic pneumonia with idiopathic pulmonary fibrosis is not entitled to the presumption of service connection. 38 U.S.C. § 1116 (212); 38 C.F.R. § 3.307 (2019). It is noted however, that due to exposure to herbicides/Agent Orange. Although the Veteran does not meet the requirements for presumption of service connection of his lung disorders due to exposure to herbicide agents to include Agent Orange, it does not preclude establishing service connection from direct causation. The Veteran does not contend, and the evidence does not otherwise show, that he was treated for a lung or respiratory disorder during service or was diagnosed with such in service. In this regard, as noted above, the first evidence of the disorder was in 2007 when it was found unexpectedly during a routine pre-op medical clearance which required a routine chest radiograph. The passage of many years between discharge from active service and the medical documentation of a claimed disability is one piece of evidence weighing against a claim of service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As there is no evidence that eosinophilic pneumonia with idiopathic pulmonary fibrosis began during service, the threshold question is whether there is sufficient medical evidence to establish an etiological link between the Veteran’s lung disorders and his active military service. In this regard, a physician provided a May 2018 VA addendum report with medical opinion that the Veteran’s lung disorders were less likely as not incurred in or caused by herbicide agents, chemicals, or asbestos exposure during service. As detailed above, she explained that the opinion was based on a review of the Veteran’s medical records and with use of the most recent medical sources. The physician noted that medical records provide a diagnosis of lung disorders many years after discharge. The physician explained that per medical literature, these conditions were not the result of exposure to herbicides, chemicals, or asbestos or coal dust. Her medical opinion is persuasive and probative as to the issue at hand because the physician provided a clear explanation for the medical opinion based on the evidence of record, medical articles and studies, and clinical experience. In further explanation, concerning the contention that the Veteran’s lung disorders were caused by or related to exposure to asbestos during service, there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations concerning such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The Court has held that VA must analyze an appellant’s claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The rating agency manual indicates that asbestos fiber masses tend to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus, persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, Subpart ii, Chapter 2, Section C.2.b. The Manual also notes many people with asbestos-related diseases have only recently come to medical attention because of the latent period for development of disease due to exposure to asbestos ranges from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, Subpart ii, Chapter 2, Section C.2.f. Also, of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See M21-1, art VI, Subpart ii, Chapter 2, Section C.2.c. Although the manual is not binding on the Board, analysis of the claim may consider these guidelines. The Court has held that provisions in the Manual, do not create a presumption of exposure to asbestos. See Dyment v. West, 13 Vet. App. 141, 145 (1999). Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOPGCPREC 4-00 (April 13, 2000). Turning to the evidence of record, the Veteran’s DD Form 214 shows that the Veteran’s military occupational specialty (MOS) during service was in radio operations and repair and communications/electronics. Thus, it is not apparent that he would have come in contact with asbestos as part of his duties. Nonetheless, assuming that he did, the May 2018 VA medical opinion indicates the Veteran’s eosinophilic pneumonia with idiopathic pulmonary fibrosis is not related to asbestos exposure. Specifically, she noted long term coal dust exposure, such as in the coal mining industry could cause pulmonary fibrosis, but the presentation on chest X-ray and high-resolution computerized tomography (HRCT) on the chest were classic. The Veteran’s HRCT was not diagnostic for a coal worker’s pneumoconiosis. His primary involvement was in the lower lobes of the lungs, sparing the upper lobes which were characteristic of pulmonary fibrosis secondary to chronic exposure to coal dust. While the Appellant (as the Veteran’s substitute in this case) believes that his lung disorders were related to an in-service injury, event, or disease, she is not competent to provide a diagnosis of a lung disorder or a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge and interpretation of medical testing. Therefore, it is outside the competence of the Appellant or Veteran, because the record does not show that he/she has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the May 2018 negative medical opinion. The record does not contain any probative medical evidence or opinion that would indicate the Veteran’s eosinophilic pneumonia with idiopathic pulmonary fibrosis was related to military service. As discussed above, the only probative medical evidence of record asserts that the Veteran’s lung disorders were not related to military service. In conclusion, the evidence of record shows that the probative medical opinion provides evidence against the claim that the Veteran’s lung disorders are related to military service. Thus, the preponderance of the evidence is against the Veteran’s claim of service connection for eosinophilic pneumonia with idiopathic pulmonary fibrosis, and service connection is not warranted. There is no reasonable doubt to be resolved in the Veteran’s favor. 38 C.F.R. § 3.102 (2019). E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, 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.